
4 O 












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v v .«•.- "^ ^ v .c 



REVIEW 



OF THE 



Constitution of the United States 



INCLUDING 



CHANGES BY INTERPRETATION AND AMENDMENT 



FOR 



Lawyers and Those Not Learned in the Law 



W. G. BULLITT 

Of the Frankfort, Ky., Bar 



CINCINNATI 

THE ROBERT CLARKE COMPANY 

1899 




x 4 1 



43057 



Copyright, 1899, by W. G. Buwtt. 



TWO COPIES RECEIVED, 

00 f 6 - 1888 

fer of Co?fS^ 



SfcOouJ COPY, 






PREFACE. 



The tendency of the officials of every nation is to aug- 
ment their own importance and powers by grasping ad- 
ditional powers for the government they represent. 

The accomplishment of this augmentation of powers 
to the government must take place by periodic steps, 
each step appearing innocent at the time, or of too little 
importance to attract attention. 

Every additional power seized for the government 
must be taken from the reserved powers, or from powers 
lodged elsewhere by the organization of the govern- 
ment. 

In the United States, certain powers are retained in 
the states, and all powers not granted to the United 
States, nor prohibited to the states, are reserved to the 
states respectively or the people. 

This division of powers between the United States and 
the several states, makes each, in guarding its own 
powers, necessarily guard the reserved powers of the 
people ; so that, whether the powers so seized for the 
United States be taken from the people, or the states, the 
people will be the sufferers ; hence, we must not only be 
watchful of the reserved powers of the people, but must 
be mindful of the powers of the states. 

(iii) 



IV PRKFACK. 

" It is very uncommon to see the laws and constitution 
of a state openly and boldly opposed ; it is against silent 
and gradual attacks that a nation ought to be particularly 
on its guard. Sudden revolutions strike the imagina- 
tions of men ; they are detailed in history ; their secret 
springs are developed. But we overlook the changes 
that insensibly happen by a long train of steps that are 
but slightly marked. It would be rendering nations an 
important service to show from history how many states 
have thus entirely changed their nature, and lost their 
original constitution. 

' ' This would awaken the attention of mankind — im- 
pressed thenceforward with this excellent maxim (no less 
essential in politics than in morals) principiis obsta — they 
would no longer shut their eyes against innovations 
which, though inconsiderable in themselves, may serve 
as steps to mount to higher and more pernicious enter- 
prises. ' ' * 

Powers not granted by the letter of the constitution 
have been adjudged to the United States by the supreme 
court on the alleged theory that they were incidental to 
the sovereign government thereof. 

Sovereignty, being supreme, absolute, uncontrollable au? 
thority, it can neither be divided nor put in the custody 
of two separate jurisdictions. Therefore, if it was re- 
served to the people (as is contended for by all) it must 
be wholly in the people ; and, if it is in the government,, 
it must be wholly in the government. 



* Vattel's Law of Nations, Chap. 3, p. 9. 



PRKFACK. V 

Nor can it be divided between the United States and 
the respective states, as held by the supreme court in the 
McCulloch case ; so that, unless that authority resides 
exclusively in the people, it must be exclusively in the 
the United States (as its authority must be paramount to 
that of the states) , and the United States must be an 
empire, with the states as its provinces, instead of the 
federal republic the American people boast of. 

The executive has also assumed powers not granted to 
it by the letter of the constitution, and in some instances 
has encroached on the powers expressly delegated to 
the legislative department by the constitution. 

The congress has also assumed powers not granted to it 
by the letter of the constitution, or by the spirit of that 
instrument. 

The assumptions of ungranted powers by each of 
said departments has been accomplished by the ex- 
ercise of some apparently unimportant authority at 
periodic steps, or an authority claimed to be necessary 
for the time, and not to be repeated, though they 
have been invariably used as precedents to excuse the 
exercise, not only of the same powers, but to go 
further in their encroachments on the reserved powers 
of the people. Sometimes their assumptions of powers 
have been claimed as necessary to keep up with advan- 
cing civilization ; but this plea is a mere apology to quiet 
the people while the construction of a new form of gov- 
ernment, to be builded on interpretation alone, is being 
constructed step by step, to take the place of the repub- 
lican form of government ordained by the constitution. 



VI PREFACE. 

The constitution itself furnishes incontrovertible evi- 
dence of the bad faith of this plea. That instrument 
provides ample facilities for its own amendment when- 
ever the advance in civilization shall require an amend- 
ment ; and every substantial advance in civilization is 
encouraged by the constitution, by authorizing congress 
to protect inventions, writings, and developments in the 
fine arts, by patent rights and copyrights. 

However, no amendment can be made to the constitu- 
tion without the sanction of the people, and their sanc- 
tion thereto can not be secured without informing them 
of the character of the desired change, and this informa- 
tion would likely divulge the secret object of the ad- 
visers of the change, and check their revolutionary 
schemes. 

This Review is written in plain English, avoiding all 
unnecessary technicalities ; and the provisions of the con- 
stitution are explained according to the general use and 
meaning of the words and phrases by which they are 
expressed, as used at the time the constitution was 
ordained. I have endeavored to give to each provi- 
sion the meaning and functions it was intended to per- 
form by the convention that made the constitution, and 
the construction given by the several departments of 
the United States, and the interpretation as advo- 
cated by each of the two great political parties, so 
that the reader may have the benefit of each interpreta- 
tion. 

Of course, I have used the strongest arguments in my 



PRKFACK. Vll 

power to sustain my understanding of the provisions of 
that great instrument, and the office each is to perform, 
and wherever a different interpretation than the letter 
thereof is indicated, whether by the supreme court, the ex- 
ecutive, or legislative departments, or by either of the two 
great political parties, I have argued in favor of the in- 
terpretation that sustains the letter thereof. 

Instead of relying on the statements of any one as to 
what was meant by the several provisions thereof (except 
the letters of Messrs. Madison, Hamilton and Jay pub- 
lished while the constitution was before the people of the 
states for adoption, and compiled in a volume known as 
the Federalist), I have relied on the organization and 
lodgment of the powers and duties under the constitu- 
tion ; the manner they are required to be executed by 
the officials intrusted with them ; the retention of the 
sovereign authority in the people as shown by the great 
Declaration of Independence, and the provision of the 
constitution authorizing the people of the states to amend 
or alter the constitution without the sanction of the 
United States, or any department thereof, by demanding 
a federal convention to propose amendments to be rati- 
fied by conventions of the states, as was done in making 
the constitution of 1787 ; the language used to express the 
several provisions, particularly that used in the preamble 
delaring the objects for ordaining the constitution ; the 
language used in proposing the several provisions of the 
constitution by the delegates in the convention, and the 
action of the convention thereon, before adopting the 



Vlll PREFACE. 

same as provisions of the constitution to ascertain the 
intent and meaning the delegates in the convention 
ascribed to each provision of the constitution ; and the 
functions the convention intended each provision to per- 
form in the government of the United States and in the 
several states of the more perfect union. 

While every provision of the constitution is to some 
extent considered in this Review, that class of powers 
relating to the civil rights and business interests of the 
people more properly belong to a commentary on the 
constitution, which is beyond the purpose of this work ; 
they are therefore but briefly explained. 

But that class of powers that relate to the form and 
character of the government of the United States, and 
its relations to the states and the people, are extensively 
and minutely shown, together with the conflicting inter- 
pretations by either of the three departments, and by the 
two great political parties, with each of which the inter- 
pretation given by this Review is carefully compared. 

The interpretation adhered to in this Review conforms 
to the Declaration of Independence and the great Ameri- 
can principles introduced into the science of government 
by our colonial ancestors, which are shown to have been 
incorporated into the constitution of 1787, and to form 
the guiding principle of that great charter, so that by 
those guides every power granted by the constitution- 
should be construed. 



TABLE OF CONTENTS. 



CHAPTER I. 
Relates to charters and settlements, under English authority, of 
what constitutes the United States, — The first permanent set- 
tlement was made in 1607, the second in 1620. — Brief reference 
to the origin and growth of the principles taken from the 
English constitution. — Of the three great American principles 
(viz) : how to retain the sovereignty in the people with gov- 
ernments as municipal agents incorporated by themselves. — 
The ordaining conventions as the only organs through which 
to express the sovereign will of the people. — The separation of 
the two grand objects of government from each other and 
committing each to a separate jurisdiction. — The organization 
of the states and confederation as respective parts of a com- 
plete municipality. — The date the states constructed their re- 
spective state corporations, and the date each state ratified the 
articles of confederation, 1 

CHAPTER II. 

Relates to calling and holding the convention of 1787, to amend 
the articles of confederation. — The resolution offered and dis- 
cussed. — The division of the delegates on the character of gov- 
ernment, whether it should be " a federal republic " or a strong 
empire. — The compromise on the plan of the report of the 
grand committee, giving the corporations of the states repre- 
sentation through the senate, and the people of the states rep- 
resentation through the house of, representatives. — The adop- 
tion and report of the constitution, .... 33 

(ix) 



TABLE OF CONTENTS. 



CHAPTER III. 



Relates to the various interpretations as to the character of gov- 
ernment ordained by the constitution. — The interpretation of 
the supreme court and anti-slavery party ; that by the pro- 
slavery party and others ; and that which appears to be the 
only logical interpretation consistent with the compromise of 
the convention, .82 

CHAPTER IV. 

Relates to the organization of the two houses of congress, so as to 
make the senate represent the union of the municipal corpora- 
tions of the states, and the house of representatives to repre- 
sent the union of the people of the states. — The functions of 
each house separately, and of both combined, . . 109 

CHAPTER V. 
Relates to the authority of congress. — To lay and collect taxes. — 
To borrow money. — To coin money and regulate the value 
thereof and of foreign coin. — To regulate commerce with 
foreign nations, and among the several states, and with the 
Indian tribes, 131 

CHAPTER VI. 

Relates to powers appertaining to the political laws, such as au- 
thority to establish naturalization laws. — Bankrupt laws. — 
Prescribe punishment for counterfeiting the coin or securities 
of the United States. — To establish post-offices and post- 
roads. — To promote the progress of science and by protecting 
inventors by patent-rights and copy-rights. — To constitute 
tribunals inferior to the supreme court. — To define punishment 
for piracies. — To declare war. — Raise and support armies. — 
Provide and maintain a navy. — Make rules for the government 



TABLE OF CONTENTS. XI 

of the land and naval forces.- — Provide for calling forth the 
militia. — Provide for organizing, arming and disciplining the 
militia. — To exercise legislation over the district set apart for 
the capitol. — To make laws to carry the powers granted. — To 
limitations on the powers of congress. — And to limitations on 
the powers of the states, . . . . . . 174 

CHAPTER VII. 

Relates to the organization of the executive. — The mode of electing 
the president and vice-president. — The term of office of each. — 
The powers vested in each. — And the mode the office of presi- 
dent shall be filled in absence or inability of the president to 
serve, 205 

CHAPTER VIII. 

Relates to the organization of the judiciary department. — The 
change made therein by the committee on style. — The powers 
and jurisdiction as changed by said committee. — Which powers 
and jurisdiction are disputed by able statesmen, and were dis- 
puted by Presidents Jefferson, Jackson and Lincoln, and said 
powers and jurisdiction are in conflict with the sixth article of 
the constitution, 236 

CHAPTER IX. 
Relates to the cohesive principles upon which the union rests. — Such 
as requiring full faith and credit to be given in each state to 
the public acts of all of the states ; each state being required 
to extend equal privileges and immunities to the citizens of all 
of the states. — The requiring of each state to capture fugitives 
from justice and upon requisition turn them over to the au- 
thorities of the state in which the crime was committed. — Each 
of which provisions constitute the supreme law of the land, 



Xll TABLE OF CONTENTS. 

notwithstanding any law of congress or any state to the con- 
trary. — The mode provided by the constitution for amending 
the same. — Defining what shall constitute the supreme law of 
the land. — Requiring all officers of the several states and of 
the United States to be bound by oath or affirmation to support 
the constitution ; and when nine states ratify the constitution 
it shall be binding between the states ratifying it, . 268 

CHAPTER X. 

Relates to the several amendments of the constitution. — The first 
ten amendments, frequently spoken of as the bill of rights, are 
extensively considered. — The eleventh amendment restrains and 
limits the jurisdiction of the courts of the United States. — The 
twelfth changes the plan of electing president and vice- 
president. — The thirteenth abolishes the institution of slavery 
in the United States. — The fourteenth purports to declare the 
native born of African descent citizens of the United States 
and of the state wherein they reside ; but it concedes on its 
face that the states have the right and ability to defeat the 
declaration of citizenship, or the right to vote of said native. — 
But the fifteenth amendment proposes to force the states to per 
mit them to vote, 316 



REVIEW 



Constitution of the United States, 



CHAPTER I. 

Organization of the States and Confederation. 



The first permanent settlement under English author- 
ity in this country, was made under a grant to two 
companies by the sovereign kingdom of Great Britain, in 
1606, in the name of Sir Thomas Gates and others. The 
first company consisted of citizens of London and else- 
where, and the second company consisted of citizens of 
Bristol, Exeter, Plymouth and elsewhere. 

The grant to both companies comprised all the terri- 
tory between north latitude 34 and 45 °, extending from 
the Atlantic ocean one hundred miles inland. The part 
thereof granted to the first company comprised all the 
territory between latitude 34 ° and 41 ° ; and the part 
thereof granted to the second company comprised the 
territory between north latitude 38 ° and 45 °. It will 
be observed that a conflict appears in the boundaries 
granted to these two companies, but an amendment of 
the charter of the first company, in 1609, changed the 
boundary of the territory granted to that company, so 
as to extend two hundred miles northwardly, and two 
hundred miles southwardly from Point Comfort, in Vir- 



2 CONSTITUTION OF THE UNITED STATES. 

ginia, on the Atlantic coast, and to extend from sea to 
sea.* The purpose of England in planting her colonies 
in this country was to acquire vacant territory, and the 
amendment of the charters of these two companies was 
to extend the actual possession of that kingdom to the 
Pacific ocean, with a view of appropriating the territory 
between Canada and Florida from sea to sea.f 

The first company sent over three ships laden with 
emigrants to aid in settling the country (under said grant 
to said first company), to be known as Virginia. But 
the emigrants that came over in 1606 made no permanent 
settlement, until another colony arrived in the spring of 
1607, whose ships landed at James City (afterward called 
Jamestown), on the James river. The charter of that 
company was again amended in 1611-12, which amend- 
ment provided for a treasurer, and a London board or 
committee, to manage the financial affairs, all of whom 
were required to reside in England and hold their meet- 
ings in London, and a governor, to be appointed by the 
king, to preside over the colony. 

The London board of directors or committee was au- 
thorized to provide for and constitute such officers as that 
committee and the governor should agree on, to manage 
the affairs of the colony ; and at the instance of the board 
of managers residing in England, a committee or board 
of managers to reside in the colony was instituted to aid 
the governor, which was authorized by the amendment 
of 1611-12, and authority was also given to adopt rules 
for the general welfare of the colony. 

By selling the lands in small parcels to those who would 
settle on them, this first colony prospered, and as it in- 
creased in wealth and population it grew in power, and 



*Poore, "Fed. and State Const, and Col. Charters" — Virginia, 
f Ibid. — Massachusetts. 



ORGANIZATION OF THE STATES, ETC. 3 

with that increase in wealth and power came a desire for 
greater liberty and a more congenial government ; and 
the people began to show such a spirit of unrest as to 
cause Sir George Yeardly, the then governor, to call a 
general assembly, composed of representatives from the 
several boroughs and plantations, in 1619, to exercise 
the functions of legislation ; and this was the first legis- 
lature that ever assembled on this continent. This body 
of representatives of course acted in conjunction with 
the committee chosen by the Knglish directors and the 
governor, which gave this first legislature some resem- 
blance to the British parliament. 

This example of a domestic parliament to regulate 
the internal affairs of the colony was found to be 
so indispensable to the welfare and quiet of the 
colony as to induce the English committee to issue 
a permanent ordinance in 1621, establishing a legis- 
lative representation of the colony fashioned after the 
British parliament. The Knglish committee appointed 
the council, composed of citizens of the colony, which 
corresponded to the House of I^ords ; and the citizens of 
the plantations and boroughs elected representatives to 
another house, which two houses acted separately. This 
lower house corresponded with the House of Commons 
in the British parliament, and the governor occupied the 
relation of chief executive. After 1627 the governors 
were elective by the two houses of the legislative depart- 
ment ; but if they failed to elect, then the king might 
appoint a governor, provided he appointed a citizen of 
the colony known to be favorable to the welfare of the 
colony. 

The charter of the second company was renewed in 
1620, and by that renewed charter the boundary was 
changed, so as to embrace the territory between north 
latitude 40 ° and 48 °, which left a gap between the two 



4 CONSTITUTION OF THE UNITED STATES. 

grants instead of a lap, as it was under the charter of 
1606; and the second company was then named "New 
England" under the amendment of 1620.* Under 
that amendment, or renewed charter, the Plymouth set- 
tlement first began by the emigration brought over on 
the Mayflower. 

As the colony of Virginia had demonstrated that a 
liberal government would cause the colonies the more 
readily to be settled up, and therefore greatly redound to 
the interest of the stockholders, the Plymouth emigrants 
were assured of the aid of their English committee in 
giving them a liberal government for their colony. The 
emigrants who came over on the Mayflower planned their 
government while on board the ship, and proceeded to 
organize under that government as soon as they were 
landed. 

The other colonies obtained their respective charters 
many years after that of New England, and they were 
generally granted with such form of government as those 
who were deputed to apply for them would ask for, and 
indeed they were often prepared and voted on by the 
people before the charter would be applied for, and were 
seldom, if ever, refused. 

The colonies, settled by English people under authority 
of the crown of England, brought with them the English 
common law and constitution, as well as their British 
charters ; and when the separation took place it left the 
people clothed with English common law, and the entire 
sovereign authority thereof ; although they may have 
lost the provisions of their respective charters, as the 
charters were entirely municipal, and were sustained 
alone by the support they were getting from the sov- 
ereign kingdom of Great Britain ; and when the munici- 



Poore, "Charters," etc. — Massachusetts. 



ORGANIZATION OF THE STATES, ETC. 5 

pal cord that bound the colonies to Great Britain was 
severed, they could no longer draw any municipal au- 
thority from that kingdom. 

But as all sovereign authority originally comes from 
the people, and their rules and customs, or common law, 
antedate and constitute the basis of the government, it is 
never lost with the loss of the government, but survives 
the government, as a part of the civilization of the people 
of the country. Still, the colonies chose to retain the 
laws enacted by themselves under their British charters, 
and carried them into their respective state governments 
under constitutional sanction. 

The colonies originating under British authority, and 
the people thereof, being clothed with the English com- 
mon law and the British constitution, as far as applicable 
to the condition and needs of each colony, many valua- 
ble principles were drawn from the English constitution 
and common law, that enter into the American system, 
therefore a brief mention of the origin and growth of 
such of the principles of the English common law and 
constitution as enter into and become a part of the Amer- 
ican system, may aid in reaching a clearer understanding 
of the American system. 

Whatever may have been the laws or customs of the 
British, it is not necessary to inquire into, as they were 
supplanted by the Angles or English, a race of people 
who came in the fifth century from the heart of the pen- 
insula that separates the Baltic from the North sea, who 
after many years of relentless struggle, with the aid of the 
Jutes and Saxons, succeeded in conquering the Britons. 
Therefore we must look to the customs and laws of the 
Angles, or English people, for the fundamental principles 
of the constitution of Great Britain. 

The most important and guiding principle upon which 



6 CONSTITUTION OF THE UNITED STATES. 

the English civilization and constitution was founded, 
consisted of the sacredness with which the family and 
family governments were regarded.* 

Whether these conquerors drew their sacred regard for 
their home governments from biblical revelation, or from 
the natural inclination to sustain their domestic tran- 
quillity and family governments, is not material to this 
inquiry. 

However, Schlegel, in his great work on the philoso- 
phy of history, claims that the four great convulsions of 
the world became necessary to purge the world of the 
sins that grew out of a disregard of marital relationship. 

It is true, the language used in pronouncing the curse, 
or judgment in each case, includes that sin ; though other 
sins were also mentioned in the judgments, still it must 
be admitted that the sins named in each judgment were 
in some way connected with and arose out of disregard 
of monogamy in marital relationship. 

However, wherever those unlettered invaders derived 
their sacred regard for their family government, and 
strict adherence to monogamy and loyalty in marriage, 
the moral life growing out of it constituted the foundation 
of their future greatness as a nation of people. 

The recognition of marriage being instituted by God, 
as a sacred institution, necessarily carries with it the rec- 
ognition of a government of divine authority ; and as no 
government can subsist without a head, and rules to be 
obeyed, from the natural formation of man and woman, 
as well as the natural division of duties consigned to 
each, the man must necessarily constitute the head of 
the family government. 

So that the husband and father, while acting as the 
head of his family, is authorized to bind them in compact 

* Green's English People, ch. i (larger edition). 



ORGANIZATION OF THE STATES, ETC. 7 

or covenant with other families, in order to secure the 
maintenance of the cherished religious and civil rights to 
be enjoyed by his family, together with the families of 
the other parties to the covenant or compact ; this may 
be the foundation of representative government brought 
by that people with them to Great Britain, which is so 
thoroughly grounded in their system of government. 
We find in the earlier period of the history of that 
people, that their village assemblies or motes, consisted 
of males capable of bearing arms, or who had families ; 
and those village motes selected representatives to a 
higher assembly known as the township or hundred 
mote. These motes not only made laws but decided con- 
troversies between adverse parties ; the township mote 
having appellate or revisory jurisdiction over the de- 
cisions and acts of the village mote.* 

There was still another assembly, variously styled 
Michel-gemote or great meeting, but better known by 
the name Wittena-gemote, or the meeting of the wise 
men. When this council first began is not known, 
though it was familiar to the different kingdoms of the 
Heptarchy, and after the union it was ordered by Alfred 
that this council should meet twice a year or oftener, 
perpetually.f 

The Angles, or English invaders, brought with them 
another assembly known as the war host, or folk mote, 
which was supposed to be an assembly of the whole peo- 
ple, and all freemen and soldiers, as well as the leaders, 
were entitled to seats in this mote. The villagers gen- 
erally selected the representatives to this assembly, which 
was not, however, a regular provision of the govern- 
ment, but was called into existence only in cases of 



* Green, ch. i (larger ed. ). 

f Blackstone, vol. i, pp. 147-149. 



8 CONSTITUTION OF THE UNITED STATES. 

emergency, to regulate wars, and was authorized to de- 
cide whether to engage in conquest of other countries ; 
and it had jurisdiction to change the government so as 
to make it adequate to the exigencies of the wars, or 
movements in making new conquests. But as the man- 
agement of armies in the contest with the Britons re- 
quired a compact government and rulers, this assembly- 
was permitted to fall into disuse, which brought about 
the establishment of kings to rule over that country.* 

It is claimed that the sovereignty of that people re- 
sided in the village motes. But when we recall the fact 
that sovereignty is supreme, irresistible, absolute, uncon- 
trolled authority, as said by Mr. Blackstone,f it must be 
above all law, and authorized to change the form of the 
government or its constitution at will ; and that the ac- 
tions of the village mote being subject to revision by the 
township mote, that arbitrary, uncontrolled authority 
could not reside in the village mote. The war host, or 
folk mote, alone was authorized to change the govern- 
ment, though this mote had no permanent existence, 
and whenever it should adjourn it ceased to exist ; but 
another war host could be called into existence by the 
villagers at any time. 

Exactly what steps were necessary to be taken to au- 
thorize calling into existence the war host, is not given 
with certainty. But when the villagers called into ex- 
istence the war host, and selected the representatives to 
the same, there was no appeal from that action of the 
villagers to the hundred mote. It therefore follows that, 
whenever the village mote acted within its jurisdiction 
as a part of the organized government, an appeal would 
lie to the hundred mote ; but as the folk mote, or war 



* Green's English People, ch. i (larger edition). 
f Blackstone, vol. i, p. 49. 



ORGANIZATION OF THE STATES, ETC. 9 

host, was outside of the government, the villages had 
no authority as a part of the government to institute it, 
or to select the representatives thereto. Therefore, when- 
ever the folk mote, or war host, was instituted, it must 
have been by the action of the villagers individually, 
and not as representatives of the village mote. Conse- 
quently the sovereignty resided not in the village mote, 
but in the villagers, or the heads of the families residing 
within the boundary thereof. The only mode by which 
the villagers could give expression to their sovereign 
will was through the folk mote, or war host. 

At that time it was thought that a government could 
not exist without possessing sovereignty within its or- 
ganization ; hence the authority of the villagers to 
change or modify the government through the folk mote 
must have been a reversionary right to regain the sov- 
ereign authority. 

Mr. Blackstone says : "It must be owned that Mr. 
Locke and other theoretical writers have held that ' there 
remains still inherent in the people a supreme power to 
remove or alter the legislative, when they find the legis- 
lative act contrary to the trust reposed in them ; for, 
when such trust is abused, it is thereby forfeited, and 
devolves to those who gave it.' But, however just this 
conclusion may be, in theory, we can not practically 
adopt it, nor take any legal steps for carrying it into ex- 
ecution, under any dispensation of government at pres- 
ent actually existing. For this devolution of power to 
the people at large, includes in it a dissolution of the 
whole form of government established by that people, 
reduces all the members to their original state of equal- 
ity, and, by annihilating the sovereign power, repeals all 
positive laws whatsoever before enacted. No human 
laws will, therefore, suppose a case, which at once must 
destroy all law, and compel men to build afresh upon a 



TO CONSTITUTION OF THF, UNITED STATES. 

new foundation ; nor will they make provisions for so 
desperate an event, as must render all legal provisions 
ineffectual. So long, therefore, as the English constitu- 
tion lasts, we may venture to affirm that the power of 
parliament is absolute and without control. ' ' * 

The learned commentator might have gone further, 
and with great force have added, that as such forfeiture 
must depend on the conviction of a betrayal of the trust, 
and those to be so convicted being public officials, would 
necessarily have control of the forces of the government 
to enable them to execute the trust so betrayed, with 
those forces at their disposal they could prevent a trial 
of themselves ; or they might permit a trial, and refuse 
to surrender the forces of the government. 

Should the officials, in good faith, believe they were 
but discharging their duty, although, as matter of fact, 
they might be exercising doubtful powers, they ought 
not to surrender the forces of the government, but on 
the contrary they ought to hold on to them, and main- 
tain the government and its general welfare, as they 
conscientiously believe to be their duty. Hence a mere 
reversionary right to reclaim the sovereign authority 
must forever remain a theory of no practical value to 
the people, particularly as the dissolution of a sovereign 
government would annihilate the laws enacted by that 
government, as Mr. Blackstone says. 

When the great council or Wittena-g emote was divided 
into the two houses of parliament as they now exist, his- 
torians differ, but Mr. Blackstone says: "It is, how- 
ever, sufficient to know that as early as the seventeenth 
year of King John, a. d. 12 15, in the great charter 
granted by that prince, he promised to summon all arch- 
bishops, bishops, abbots, earls, and greater barons per- 

* Blackstone, vol. 1, p. 162. 



ORGANIZATION OF TH£ STATKS, KTC. II 

sonally, and all other tenants in chief under the crown 
by the sheriffs and bailiffs, to meet at a certain place, 
with forty days' notice, to assess aids and scutages when 
necessary. . . . Since the year 1266 (49 Henry III.) 
the parliament has continued to subsist.* 

1 ' The parliament has no fixed time of meeting, and 
can not assemble without being called by the king ; it is, 
however, provided . . . upon the death of the king 
the parliament last summoned shall meet and may hold 
for six months, f 

' ' The parliament consists of the king in his royal ca- 
pacity and the three estates of the realm, the lords spir- 
itual, the lords temporal (who sit together with the king 
in one house), and the commons, who sit by themselves 
in another house. The king and these three estates to- 
gether form the great corporation, or body politic of the 
kingdom, of which the king is said to be caput, prin- 
€tpium et finis. For upon their coming together the 
king meets them, either in person or by representation, 
without which there can be no beginning of a parlia- 
ment, and he also alone has the right of dissolving 
them. % 

1 ■ The concurrence of all of the constituent parts of 
the parliament are necessary to enact any new law. 
. . . Whatever is enacted by one, or by two only of 
the three, is no statute, and to it no regard is due, unless 
in matters relating to their own privileges." |[ 

The power and jurisdiction of the parliament, Mr. 
Blackstone, quoting from Sir Edward Coke, says : "It 
hath sovereign and uncontrollable authority in the mak- 
ing, confirming, restraining, abrogating, repealing, re- 
vising and expanding of laws, concerning matters of all 



* Blackstone, vol. I, p. 149. f Id., p. 150. 
% Id., p. 153. II Id., p. 160. 



12 CONSTITUTION OF THE UNITED STATES. 

possible denominations. . . . All mischiefs and griev- 
ances, operations and remedies, that transcend the ordi- 
nary course of the laws, are within the reach of this 
extraordinary tribunal. It can regulate or new model 
the succession to the crown. ... It can change and 
create afresh even the constitution of the kingdom, and 
of parliament themselves. ... It can, in short, do 
every thing that is not naturally impossible. ' ' * 

It will be observed that the division of the legislative 
department into two houses was fully established by 
England before the separation of the colonies from that 
kingdom. 

The executive authority was originally lodged with the 
king, and all executive powers were supposed to flow 
from the king, including all judicial power. Under that 
idea the king was regarded as the fountain of justice : 
"not author, or original, but the distributor of justice." 
And in earlier times the king often heard and determined 
causes in person between party and party. 

But by long usage the kings delegated their judicial 
powers to the judges of the several courts, until the 
courts attained a known and stated jurisdiction regulated 
by certain and established rules, which the crown itself 
could not alter except through an act of parliament. 

Athough the judges had acquired a certain and known 
jurisdiction, they were still but the agents of the king, 
and derived their powers from the king as the chief 
source of all executive authority, and their terms of 
office expired with the death of the king who appointed 
them. 

But by statute of i George III., c. 23, it was enacted at 
the request of the king that "the judges be continued in 
their offices during their good behavior notwithstanding 

*Blackstone, vol. 1, pp. 160-61. 



ORGANIZATION OF THE STATES, ETC. 1 3 

any demise of the crown' ' (which was formerly held, im- 
mediately to vacate their seats), and their salaries are ab- 
solutely secured to them during the continuance of their 
commissions.* 

This statute completed the liberation of the judiciary 
from the king, and the construction of it into a separate 
and independent department of the government of that 
kingdom. 

As the commissions of the judges extended only 
through good behavior, they would necessarily be sub- 
ject to removal whenever their behavior should cease to be 
good. But to impeach them they must be convicted of 
some willful misbehavior ; a mere mal-interpretation of 
the laws, or of the constitution, would be no cause of 
impeachment ; still a mal-interpretation of the constitu- 
tion might have the effect of changing the character of 
the whole system of government. 

To guard against such a calamity, it was provided in 
the constitution of that kingdom that the judges should 
be removable upon the address of two-thirds of each 
house of parliament. Hence, while the judiciary was 
removed from every influence of the king by said act of 
1 George III., c. 23, they were still subject to the power 
of the people, who could elect a parliament to address an 
offending judge out of office, whenever he betrayed a dis- 
position to so interpret the constitution, as to change the 
character of the government. The mere existence of this 
power in the people has caused the judiciary of that realm 
to guard with scrupulous care the reserved rights of the 
people. 

The exact date the county courts were established in 
England is not known, but mention is made of them as 



*Blackstone. vol. 1, pp. 266-67. 



14 CONSTITUTION OF THE UNITED STATES. 

early as the reign of Ina, during the continuance of the 
Heptarchy. * 

And the incorporated city is of ancient origin. So 
that, we drew from England — 

First, the separation of the law making power from 
the executive power. 

Second, the division of the legislative, or law making 
power, into two houses, requiring a concurrence of each 
house with the other to enact any law. 

Third, the division of the executive into two depart- 
ments ; that is, carving the judiciary out of the execu- 
tive, and constituting it into a separate department of 
government. 

Fourth, the division of the nation into counties, as 
parts of the state, to aid in the enforcement of the laws. 

Fifth, the subdivision of counties into villages, town- 
ships, shires, and incorporated cities and towns. 

But as, up to the establishment of the American system, 
it was thought that every government however consti- 
tuted, must be vested with sovereign authority (unless in 
cases of incorporated cities and colonies, for every charter 
presupposes a superior), and sovereignty being the su- 
preme authority, that superior could not vest a city or 
colony chartered by it with sovereignty, without destroy- 
ing its own sovereignty ; so that the city or colony char- 
tered by it always acts as the agent of the sovereign 
nation in exercising sovereign authority, and in doing 
sovereign acts, and must continually draw its life and 
existence from the sovereign authority that granted the 
charter; and whenever that sovereign nation ceases to 
exist, it will have no life left to continue to infuse into a 
city or colony it may have chartered. 

In the event of the nation granting the charter ceasing 



*Hallam's Middle Ages, p. 320. 



ORGANIZATION OF THE STATES, ETC. 1 5 

to exist, the sovereignty of the colony would devolve on 
the people thereof, or on the family governments, which, 
if of divine origin, must always exist independently of 
any government established by man. 

There was no danger of the sovereign nation of En- 
gland ceasing to exist ; but that nation was threatening 
to revoke the charters of the colonies, and to put the 
colonies under special parliamentary laws, as provinces, 
which would have severed the connection between the 
colonies (as colonies) and that nation, and they would 
have a perfect right to resist any effort on England's part 
to reduce them to provinces. 

By the terms of the respective colonial charters, they 
were vested with jurisdiction of the civil laws only, 
England retaining in itself exclusive jurisdiction of the 
political laws and sovereign authority. To give a clearer 
conception of the respective jurisdictions of the colonies 
and of England, I will call attention to the fact that 
there are but two grand objects of government, to wit : 
The main object is to provide a government for the peo- 
ple, sufficient to protect them in the regulation of their 
property and religious rights, and a police management 
for their safety and pursuit of happiness, which is called 
civil laws. The political laws include the organization 
of the government, its powers and the mode of exercising 
the same for the general welfare of the government itself ; 
and as the government, or the agent having jurisdiction 
of political laws, is the only organ through which the 
nation contracts and maintains treaties, or can carry on 
intercourse with foreign nations, it must have control of 
all of the forces of the nation. And every complete 
government must have control, not only of the forces of 
the nation, but the people thereof, and the making of the 
civil laws for their welfare. 

As before stated, the jurisdiction of the colonies was 



1 6 CONSTITUTION OF THF, UNITKD STATES. 

limited to the civil laws only, though with that limited 
jurisdiction their colonial governments were satisfactory 
to the people, and they did not desire to change their 
home or state government in their respective colonies. 
But as their corporate colonial governments could not be 
continued without a superior, and as their mother coun- 
try (Great Britain) was threatening to desert them, 
the colonists were not willing to entrust the sovereignty 
and the political laws thereof to any other government, 
so the people resolved to retain the sovereignty in 
themselves. But history failed to point out to them 
forms of government, or any system of governmental 
agencies, by which they could retain the sovereignty in 
themselves and at the same time continue the subjects 
of themselves. 

However, beyond the history of governments formed 
by man, they found that the Divine Ruler of the 
universe had shown the way by which the sovereign 
could continue to be sovereign, and also constitute sub- 
jects of that sovereign authority, by placing the world 
under a reign of laws by which He chose to abide as 
long as He permitted those laws to stand, without sur- 
rendering His sovereign authority, or power, to change 
those laws at will. And the folk mote or war host of 
their English ancestors taught them how to provide a 
separate assembly through which to express their will as 
sovereigns, other than that provided for them to express 
their will as subjects ; and they boldly resolved to introduce 
this new principle of science in government in their sys- 
tem for the American states, and to retain the entire 
sovereign authority in themselves, and make themselves 
the subjects of whatever government they might estab- 
lish for themselves. 

The Colony of Virginia leading off by its bill of 
rights on the 12th of June, 1776, and its constitution on 



ORGANIZATION OF THE STATES, ETC. 1 7 

the 29th of June, 1776, declared that the officers of the 
government thereof were but agents, trustees, and pub- 
lic servants ; and also provided for calling conventions to 
alter, amend, or abolish the constitution, or plan of gov- 
ernment, then being established. 

That government, being but an inanimate entity, could 
do nothing except by and through its officers ; conse- 
quently the government itself must be but a trustee and 
agent. But as one may be vested with a naked trust, 
which is revocable at any time by the grantor, or he may 
be vested with a trust coupled with an interest, which 
interest may be sufficient to prevent a revocation thereof 
until the trustee be compensated for his interest, so a 
government may be simply an agent and trustee (as is 
the case with municipal corporations) , or it may be an 
agent and trustee vested with an interest in the sovereign 
authority. However, as sovereignty is supreme it can 
neither be limited nor divided ; therefore, if the govern- 
ment be vested with any part of that authority by its 
organization, it must necessarily have the whole sov- 
ereign authority, and in that event the only way to get 
that authority out of the government would be by a for- 
feiture of it by the malconduct of the officials, or by 
forcible seizure of it by the people in a revolution. 

But, as was thought at that time, every government 
must possess sovereignty within itself, to enable it to ex- 
ercise that power, the language used in the Virginia con- 
stitution and bill of rights may have been thought insuf- 
ficient to reserve that authority out of the government of 
that state. However, when the fact that the people re- 
served to themselves the power to call a convention to alter 
or amend their constitution is considered, in conjunction 
with the declaration in said bill of rights and constitu- 
tion, it appears sufficient, to reserve the entire sovereign 
authority to the people of that state. The further fact 



1 8 CONSTITUTION OF THE UNITED STATES. 

that the government then ordained and established 
should forever remain, until altered or amended by the 
people, in sovereign convention assembled, thereby con- 
stituted the sovereign convention, as the only organ 
through which to express their sovereign will. 

Therefore, whatever may be done in the way of mak- 
ing or changing laws, or of governing the people, through 
the government, or any of its departments, or officers, 
could not be regarded as sovereig?i acts or of sovereign au- 
thority. But should the constitution and bill of rights 
of Virginia be held insufficient to fully set forth the great 
American discovery in the science of government, the 
great Declaration of Independence proclaimed the Fourth 
of July, 1776, clearly sets forth that the right of life, 
liberty and the pursuit of happiness, are inalienable 
rights ; and that whenever the government fails to pro- 
tect these rights, the people have the right to alter or 
abolish the same, and to institute a new government, 
laying its foundation on such principles and organizing it 
in such form as to them shall seem most likely to effect their 
safety and happiness. But if the Virginia constitution and 
bill of rights fail to fully declare the American principles, 
this great declaration also falls short of doing so. 

Most of the states failed to establish a constitution 
until after said declaration had been proclaimed, and 
many of them failed to construct a constitution and bill 
of rights until after the Articles of Confederation for the 
union had been agreed to by the congress, and ratified by 
all of the states. And nearly all of the states that adopted 
their respective constitutions, after the debates on the 
Articles of Confederation in the congress, and in the 
legislatures of the states, in ratifying the same, in some 
form of language, either in its constitution or bill of 
rights, declared that the sovereign authority, or all gov- 



ORGANIZATION OF THE STATES, ETC. 1 9 

ernmental powers, emanated from the people and were 
inalienable from them. 

As long as this sovereign power is inalienable from the 
people, it can not vest in the government ; therefore, the 
declaration of Virginia, as well as other states, must be 
accepted as a positive reservation of this power, out of 
the government, and a retention of it, in the people. 

Our colonial ancestors were aware of the difficulty of 
providing for the preservation of the principles upon 
which the government might be originally founded ; for 
they knew of the contention by philosophical writers on 
the subject, that governments had generally been founded 
in compact, whereby the reserved rights of the people 
had been apparently well guarded ; but, by gradual 
usurpation, arising out of interpreted powers, seem- 
ingly innocent at the time, which performed the func- 
tion of precedent, to lead to other and more dangerous 
encroachments, until every reserved right of the people 
had been absorbed by the government. However, 
Mr. Blackstone denies that governments were formed 
in compact ; on the contrary, he claims that they were 
always the result of growth ; but it is not material 
how they were originally established, for in their earlier 
existence the officials would have less power to impose 
on the people than they have after the government 
itself grows richer and stronger than its inhabitants. 
But whatever may have been the origin of govern- 
ments before the American system was established, our 
colonial ancestors were then engaged in establishing 
a system of government in compact, and to introduce 
new principles in the science of government, and were 
extremely anxious to guard the new system ' ' of retaining 
the sovereignty in the people. ' ' 

They were familiar with the advantages of dividing 



20 CONSTITUTION OF THE UNITED STATES. 

the powers of government between three co-ordinate de- 
partments, and putting each under the management of a 
different set of officials. They were also familiar with 
the fact that the grand attributes or objects of govern- 
ment could be separated, and each of them committed to 
a separate government, as the colonists had seen and 
tried, in the cases of their colonial governments under 
their British charters, with jurisdiction of the civil laws 
only, in the colonies, while England retained exclusive 
jurisdiction of the political laws and the entire sovereign 
authority, though granting limited jurisdiction to the 
colonies to wield such sovereign forces as were necessary 
to enable them to carry into effect the trusts and duties 
imposed on them as municipal agents of England. 

This new development in the science of government 
not only required the separation of jurisdiction of the 
civil laws from jurisdiction of the political laws, but 
also required a limitation on the exercise of jurisdiction 
of the political laws ; for wherever jurisdiction of the 
political laws might be lodged, the whole forces of the 
country, needed for public defense, must also be lodged, 
and the danger of that jurisdiction absorbing the reserved 
powers of the people made it necessary to impose limits 
and enforcible checks. Consequently, it was necessary 
to construct two governmental corporations, the one to 
be vested with jurisdiction of the political laws, and the 
other to be vested with jurisdiction of the civil laws, the 
jurisdiction of each to be exclusive as to the objects 
and governmental functions committed to it ; and as the 
jurisdiction of each necessarily had to extend over 
the same territory and the same people, who were 
to constitute the union, there was no way to define 
the boundary of each jurisdiction, except to divide the 
whole territory into fractional or component parts, and 
to give to each fraction jurisdiction of one of the great 



ORGANIZATION OF THE STATES, ETC. 21 

objects of government, to the extent of its boundary, 
which would necessarily subdivide the jurisdiction of 
that object between the different parts. 

As the political laws relate to the government itself, 
and its maintenance against either foreign or domestic 
foes, and in its relations with foreign nations, it must 
have control of all the forces of the whole country. Ju- 
risdiction of the political laws, therefore, must be given 
to the corporation of the Union, and jurisdiction of the 
civil laws to the states, or fractional parts of the country, 
or union. 

The states had existed as colonies having jurisdiction 
of the civil laws only, under their British charters, which 
was satisfactory to the people ; and they did not desire 
any greater jurisdiction for their states under the new 
system, nor did they desire any change in the boundaries 
of their respective colonies or states ; they therefore 
retained their respective colonies to constitute the divi- 
sion of the country to mark the boundary of the juris- 
diction of one of the objects of government. By divid- 
ing the jurisdiction of the objects of government was 
the only way the people could have secured the sovereign 
authority in themselves absolutely ; for had the sov- 
ereignty been vested in the American people as one peo- 
ple, the people of the states could not have been vested 
with it, but it must abide in the people of the union, 
and there was great apprehension of the governmental 
agency of the union gradually absorbing the sovereign 
authority from the people, by usurping powers appar- 
ently innocent at the time, but to serve as precedents 
to enable them to revolutionize the entire system of 
government, as history showed had so often been 
done in former free governments, apparently well 
guarded against the ambition of their officials. There 
was no danger of that character of usurpation to 



22 CONSTITUTION OF THE UNITED STATES. 

come from the state officials as long as jurisdiction of the 
political laws continued to reside in the governmental 
agency of the union, and the main inducement for sep- 
arating the two great objects of government, so as to 
put them under the control of two separate jurisdictions, 
was to guard against all danger of losing their sovereign 
control of either of said governments, as it required 
both to constitute a complete government. 

As each state is vested with exclusive jurisdiction of 
the civil laws (with a few specified exceptions) and ex- 
cluded from jurisdiction of the political laws, the gov- 
ernmental agency for the union must constitute a part 
of that of each state individually ; and as the agency of 
the federal union was vested with exclusive jurisdiction 
of the political laws, and (in the main) excluded from 
jurisdiction of the civil laws, each state individually 
must constitute a part of the governmental agency for 
the federal union, so that each must constitute a part of 
the other. 

As neither the federal union nor the states have juris- 
diction of both of the necessary objects of government, 
to constitute government, neither can be sovereign, and 
each must be a mere municipal or corporate agent of 
some higher authority. Consequently the United States, 
as well as the several states, must constitute a mere 
agent of that higher authority, and bear the same rela- 
tion to that higher authority that municipal corporations 
bear to the state or nation that granted the charter. 

As the people of the respective colonies granted the 
charters of their respective states, wherein they reserved 
to themselves the entire sovereign authority, the states 
constitute municipal corporations, deriving their respect- 
ive existence and powers from the people. 

And as the Articles of Confederation were constructed 
by the Colonial Congress, composed of representatives 



ORGANIZATION OF THE STATES, ETC. 23 

from each colony, and had to be ratified by the legisla- 
tures of the several states to make it valid and binding 
(the legislatures being mere agents of the people) , the 
ratification by the legislatures of the states was in law 
the ratification of the people of the states. Hence the 
confederation could not have been more than a municipal 
corporation, deriving its existence and authority from 
the concurrent act of the people of all of the states. 

These three great principles, to wit : First, the dis- 
covery of a mode by which the people could retain the 
entire sovereign authority in themselves, and at the same 
time make themselves subjects of a government deriving 
its entire authority from themselves ; second, how a peo- 
ple may govern themselves through municipal corpora- 
tions constituted by themselves, with power to revoke 
the same at will ; third, how to separate the powers that 
belong respectively to each of the two grand divisions of 
government, and to commit the execution of each to a 
separate government, or municipal agent, are of Amer- 
ican origin ; and when coupled with the guards to ab- 
solute religious freedom, at least, excuses the idea of 
the inspiration of our revolutionary fathers, so often 
claimed in the pulpit and Fourth of July orations, as 
a fulfillment of the lord's promise to put the new laws 
in the minds of the people and write them in their 
hearts.* 

These great American principles were not only put 
into the minds of our colonial ancestors by existing cir- 
cumstances, but they were written in their hearts in the 
blood of a fierce war, cruelly and unjustly waged against 
them by the most powerful nation of that age. 

The events and circumstances connected with the or- 



* St. Paul's Epistle to the Hebrews, vii, viii, ix. 



24 CONSTITUTION OF THE UNITED STATES. 

ganization of the governments of the several states, and 
the government of the confederacy under the articles of 
confederation, will show that they were constructed 
about the same time, as parts of each other, on the prin- 
ciples above stated. 

The Colonial Congress, by resolution adopted, the ioth 
of May, 1776, advised the colonies, "where no govern- 
ment sufficient to the exigencies of their affairs had been 
established to adopt such a government as should, in the 
opinion of the representatives of the people, best conduce 
to the happiness and safety of their constituents in par- 
ticular and of America in general. ' ' * 

On the ioth of June a committee was appointed by that 
congress to draft a Declaration of Independence. That 
committee consisted of five members chosen in the fol- 
lowing order, Mr. Jefferson, Mr. J. Adams, Mr. Franklin, 
Mr. Sherman and Mr. R. R. Livingston. The committee 
requested Mr. Jefferson to draft that instrument, and 
after drafting it he submitted it to his said committee, 
and they agreed to it ; it was then reported to the con- 
vention on the 28th of June ; but it was thought that the 
states of New York, New Jersey, Pennsylvania, Dela- 
ware, Maryland and South Carolina were not ready to 
take so serious and advanced a step, and by request it 
was agreed to postpone its consideration until the 1st of 
July, f 

On the 1 st of July, 1776, said report was taken up and 
earnestly debated until late in the afternoon session of 
the 4th of July, 1776. The Declaration of Independence 
was considered in connection with the motion of the 
members from Virginia to "declare the colonies free 
states ; " the latter was agreed to first by a majority of 



* Elliott's Debates, vol. 1, pp. 54-5. f Id., p. 59. 



ORGANIZATION OF THE STATES, ETC. 25 

the states, and the former was agreed to and passed late 
in the evening of that day, and signed by the delegates 
from each of the states, except the delegates from the 
state of New York who said that they were individually 
in favor of it, but thought that their instructions, which 
had been given more than a year before, did not authorize 
them to sign it. The great Declaration of Independence 
was, however, proclaimed on the evening of the 4th of 
July, 1776, without the signature of New York; how- 
ever, that state at once authorized its delegates to ratify 
it, and they signed the great Declaration on the 9th of 
July, 1776. 

On the nth of June a resolution was passed to appoint 
a committee to prepare and digest the form of the con- 
federation to be entered into between the colonies. * On 
the day following that committee was appointed consist- 
ing of the following persons, to- wit : Mr. Bartlett, Mr. S. 
Adams, Mr. Hopkins, Mr. Sherman, Mr. R. R. Living- 
ston, Mr. Dickinson, Mr. McKeen, Mr. Stone, Mr. Nel- 
son, Mr. Hewes, Mr. Rutledge and Mr. Guinnett. Upon 
the report of the committee the subject was from time to 
time debated until the 15th of November, 1777, when a 
copy of the Articles of Confederation being made out, and 
sundry amendments made in the diction without altering 
the sense, the same was agreed to and it was then sent to 
the legislatures of the states for ratification. 

The Articles of Confederation were ratified by the states 
in the following order of time by their respective repre- 
sentatives in the congress, after being first authorized to 
do so by their respective state legislatures: 

Connecticut, New York, Massachusetts, Pennsylvania, 

* Elliott's Debates, vol. 1, p. 55. 



26 CONSTITUTION OF THE UNITED STATES. 

South Carolina and Virginia, ratified the same on the 
9th of July, 1778 ; Delaware (in part) on same day, but 
not fully until the 5th of May, 1779. North Carolina 
(in part) ratified the same on said 9th of July, and com- 
pleted its ratification on the 21st of July, 1778. Georgia 
ratified the same the 24th of July, 1778 ; New Hamp- 
shire (in part), July 9, 1778, and completed its ratifica- 
tion in August, 1778. New Jersey (in part) ratified the 
same July 9, 1778, and completed its ratification in No- 
vember, 1778. And Maryland ratified the same on the 
1st of March, 1781, which included all of the states ex- 
cept Rhode Island ; and on the next day (March 2, 1781) 
the members of the Colonial Congress were sworn in as 
members of the congress of the confederation. 

New Jersey, Delaware and Maryland, being hemmed 
in on their western boundaries, while other states had 
large surplus territory on their western border (some- of 
them claimed to extend to the Pacific ocean), which ex- 
cited the jealousy of these three states, and they each 
declined to ratify the Articles of Confederation, in hopes 
of inducing the other states to give up their surplus ter- 
ritory to be used for the common interest of all, in pay- 
ing the war debt. New Jersey and Delaware, however, 
fell in and ratified the confederation without any pledge 
to so appropriate said surplus territory ; but Maryland 
held back until Virginia agreed to surrender her territory 
on the north-west of the Ohio, by resolution of her leg- 
islature in January, 1 78 1 . 

While this activity in the construction of the confed- 
eration was going on, the colonies were equally as active 
in forming their respective state governments. Several 
of the colonies, however, had taken steps toward the 
formation of governments for themselves before the 
Declaration of Independence was proclaimed by the 



ORGANIZATION OF THK STATES, ETC. 27 

Colonial Congress, and indeed before the resolution of 
the 10th of May, advising them to form separate gov- 
ernments for themselves, respectively, to- wit : 

North Carolina, by its Mecklenburg convention, which 
met the 20th of May, 1775. 

New Hampshire, by its congress, on the 5th of Janu- 
ary, 1776. 

South Carolina, by its legislature, constructed and de- 
clared for itself a free and independent government, the 
26th of March, 1776. 

Virginia, by a house of burgesses chosen for the pur- 
pose, met on the 6th of May, 1776. 

New Jersey, by a convention that met the 26th of May, 
1776. 

Bach of the other colonies met for the purpose of form- 
ing separate governments after the Declaration of Inde- 
pendence had been proclaimed, except Rhode Island, 
which did not form a new government until in 1842, and 
Connecticut, which adopted its British charter as its 
constitution. 

North Carolina failed to carry out its Mecklenburg 
form of government, however, and by a congress elected 
for the purpose, which assembled in Halifax on the 12th 
of November, 1776, constructed a permanent form of 
government, and proclaimed the same on the 18th of 
December, 1776. 

New Hampshire's first constitution was constructed by 
its congress on the 5th of January, 1776, but it was in- 
tended as a provisional government, and was to last only 
until matters could be adjusted with England, and on 
the 10th of June, 1776, a convention of delegates chosen 
by the people met at Concord, and constructed another 
constitution, which was submitted to the people and re- 
jected by them ; another set of delegates were then 



28 CONSTITUTION OF THE TJNITKD STATES. 

chosen, who met at Exeter the 12th of June, 1781, and 
they formed a constitution and submitted it to a vote of 
the people at their town meetings, with authority in said 
town meetings to propose amendments ; this constitution 
was adopted by the people, but not in time to go into effect 
until the 2d of June, 1784. 

The first constitution of South Carolina was constructed 
and adopted by its legislature on the 26th of March, 
1776, which was amended by the legislature on the 19th 
of March, 1778 ; the supreme court of that state holding 
that both of said constitutions, being the work of the 
legislature, were but legislative acts, and that they could 
be changed by the legislature of that state ; thereupon a 
convention was called, the delegates to which were chosen 
by the people, which met at Columbia and constructed 
another constitution, and proclaimed the same on the 3d 
of June, 1790, without submitting the same to the people 
for ratification. 

New Jersey called its convention to construct its con- 
stitution, and the convention held its session with closed 
doors successively at Burlington, Trenton, and New 
Brunswick, from the 26th of May to the 3d of July, 1776, 
at which time it completed its labors and proclaimed the 
constitution for that state. 

Virginia's house of burgesses, which constructed the 
bill of rights and constitution of that state, was elected 
for that purpose, and in order to hold the sessions thereof 
the members were compelled to drive back the British 
forces under Lord Dunmore (the then governor of that 
colony) ; only forty-five of the members took part in the 
labors. The house of burgesses being as much a part of 
the machinery of government of that colony under its 
British charter as the governor was, and the object of 



ORGANIZATION OF THE) STATES, KTC. 29 

that house being to dissolve all connection between that 
colony and Great Britain (although the sovereign author- 
ity may have been in the people of that colony at that 
time), by the use of the house of burgesses to effect that 
dissolution was using a recognized agent of the sovereign 
nation of England ; so that, although it may have been 
treason on the part of each individual delegate who took 
part therein, yet the bill of rights and constitution being 
constructed and proclaimed by the principal arm of the 
corporate government, gave them the apparent sanction 
of law under English authority. 

The bill of rights constructed by that body of free, 
thinking men will compare favorably with any state paper 
of that or any other age ; and the principles of free gov- 
ernment declared therein so closely resemble those con- 
tained in the great Declaration of Independence as to 
cause some to suppose that Mr. Jefferson had a hand in 
preparing the same, or that he copied from it in drafting 
the Declaration. The bill of rights having been pub- 
lished the day after the committee was appointed to draft 
the Declaration of Independence, and it was some fifteen 
days before the committee reported, Mr. Jefferson, there- 
fore, had the benefit of reading the bill of rights before 
drafting the great Declaration ; but that instrument is in 
language so strongly resembling the peculiar style of 
Mr. Jefferson, while the language of the bill of rights 
differs so widely from that peculiar style, makes it quite 
clear that the bill of rights was drafted by some other 
person or persons. 

Delaware, by a convention chosen for that purpose, 
constructed and proclaimed a constitution for that state 
on the 21st of September, 1776. 

Georgia, by a convention of delegates chosen for that 
purpose, which met on the 1st of October, 1776, con- 



30 CONSTITUTION OF THE UNITED STATES. 

structed and proclaimed a constitution for that state on 
the 5th of February, 1777. 

Maryland, by a convention of delegates chosen for that 
purpose, met on the 14th of August, 1776, constructed a 
constitution for that state and submitted the same to the 
people on the nth of November, 1776, which was duly 
ratified. 

Massachusetts, by its general court, constructed a con- 
stitution for that state ; but that constitution was rejected 
by the people. Then by a convention of delegates chosen 
by the people for that purpose, which met at Boston on 
the first day of September, 1779, another constitution for 
that state was constructed, and, on the second day of 
March, 1780, submitted to the people, who duly ratified 
the same. 

New York, by a convention of delegates chosen by 
the people for that purpose, met at White Plains, July 
4, 1776, but being molested by British forces adjourned, 
and after repeated adjournments and meetings in differ- 
ent places in that state, finally completed its labors at 
Kingston, April 20, 1777, and submitted the same to the 
people who duly ratified it. 

Pennsylvania, by a convention of delegates chosen by 
the people for that purpose, who met in Philadelphia on 
the 15th of July, 1776, constructed a constitution for that 
state, and on the 28th of September, 1776, proclaimed 
the same without submitting it to the people for ratifica- 
tion. 

Connecticut, during the early part of the summer of 
1776, adopted its British charter as its form of govern- 
ment, and after dissolving its connection with England, 
declared that the people were the source of power in that 
colony and held the sole right to construct its govern- 
ment, adopted its British charter. 



ORGANIZATION OF THE STATES, ETC. 3 1 

Each colony formed its charter, or corporate govern- 
ment, with the view of becoming a part of a corporate 
government to be constructed by the Colonial Congress, 
and ratified by the legislatures of the respective states 
for the union, as advised by the resolution of the 8th of 
May, 1776. Although Virginia and South Carolina each 
formed a government before said resolution was adopted, 
it is evident from their constitution and bill of rights that 
each of those states also formed its corporate government 
with the expectation of its constituting a part of a cor- 
poration for the government of the union. 

The states respectively reserved the police powers and 
the management of its domestic affairs by express pro- 
vision in the organization of the corporation, although 
authority to ratify a charter for the union was vested in 
the legislature, consequently the legislature being but 
agents for the sovereign people, they could not ratify a 
grant of the police powers, or the rights to manage the 
domestic affairs to the union. But the Colonial Con- 
gress was as careful in preserving these rights in the 
states as the states were, and provided in the Articles of 
Confederation that "each state retains its sovereignty, 
freedom and independence, and every power, jurisdiction 
and right which is not by this confederation expressly 
delegated to the United States in congress assembled." * 

The people of the states having reserved to themselves 
the entire sovereign authority, this reservation of sover- 
eignty to the respective states, was in effect a reservation 
of said authority to the people of the respective states. 

But the compact was defective, principally because there 
was no direct connection between the people and their cor- 
porate agent to manage the affairs of the union, and the 



* Article 2, Confederation. 



32 CONSTITUTION OF THE UNITED STATES. 

union did not have sufficient powers to maintain its 
organization. Consequently it was necessary to amend 
its organization and perfect the union, and rearrange its 
powers. Not to do away with the old law, but to amend 
it so as to make it meet the needs and exigencies of the 
government. And the better to preserve the great 
American principles of government. 



CONSTITUTION OF 1 787. 33 

CHAPTER II. 
Constitution of 1787. 



Although the Constitution of 1777 was not finally rati- 
fied until March, 1781, congress during the session of 
1 78 1-2, by resolution, appealed to the states for addi- 
tional powers to enable it to provide adequate laws 
relating to duties and revenues. 

In April, 1783, congress again appealed to the states 
to extend its powers, to enable it to levy certain duties 
on importations. 

On the 30th of April, 1784, congress proposed to the 
states to extend its powers, so as to enable it to manage 
the commerce for fifteen years, which proposition was 
prepared and presented by a committee appointed for 
that purpose. 

As appears by the report of that committee, most of 
the states responded favorably to that proposition, but 
placed such restrictions and limitations on the authority 
so granted, as to render it unavailing; and three of the 
states took no action on the proposition. 

Various amendments to the Constitution of 1777 were 
proposed and discussed in congress, but none of them 
came to an}' final results. 

On the 21st of January, 1786, the Virginia House of 
Delegates passed a resolution, requesting the appoint- 
ment of a commission consisting of members from each of 
the states, hoping it would lead to an enlargement of the 
powers of congress. Messrs. Edmund Randolph, James 
Madison, Jr., Walter Jones, St. George Tucker, Meri- 
wether Smith, David Ross, William Ronald and George 



34 CONSTITUTION OF THK UNITED STATES. 

Mason, were appointed on that commission, who or any 
five of them, were authorized to meet such commission- 
ers as may be appointed by the other states at a time 
and place to be agreed on, to take into consideration 
the trade of the United States ; to consider how far a 
uniform system in their commercial regulation may be 
necessary to their common interest, and their permanent 
harmony; and to report to the several states such an act 
relative to this great object, as, when unanimously rati- 
fied by them, will enable the United States in congress 
assembled, effectually to provide for the same ; that the 
said commissioners shall immediately transmit to the 
several states, copies of the preceding resolution, with a 
circular letter requesting their concurrence therein, and 
proposing a time and place for the meeting aforesaid.* 

Pursuant to that resolution, the states of New York, 
New Jersey, Pennsylvania, Delaware and Virginia sent 
delegates to Annapolis, Maryland, the place previously 
agreed on for said commission to meet ; there being but 
five states represented, the delegates concluded to prepare 
an address to congress, and report to the several states 
that had delegates at that meeting, to be called to meet 
at Philadelphia on the second Monday in May, 1787: 
they then adjourned. 

On the 2 1 st of February, 1787, a committee, thereto- 
fore appointed by congress, reported in favor of its 
calling a convention of the states, to meet on the second 
Monday in May, 1787, as recommended by the Annapolis 
convention; but there seemed some difficulty in passing 
an act to call the convention by congress. The delegates 
from New York proposed: "That it be recommended to 
the states, that a convention of the representatives of the 



Elliott's Debates, vol. 1, page 115. 



CONSTITUTION OF 1 787. 35 

states be held ... for the purpose of revising 
the Articles of Confederation," which motion was de- 
feated. 

The members from Massachusetts then moved the fol- 
lowing : ' ' Whereas, there is provision in the Articles of 
Confederation and Perpetual Union, for making alterations 
therein, by the assent of a congress of the United 
States, and of the legislatures of the several states ; and, 
whereas, experience hath evinced that there are de- 
fects in the present confederation ; as a mean to remedy 
which, several of the states, and particularly the state of 
New York, by express instructions to their delegates in 
congress, have suggested a convention for the purposes 
expressed in the following resolution ; and such conven- 
tion appearing to be the most probable means of estab- 
lishing in these states a firm national government — 

"Resolved, That, in the opinion of congress, it is ex- 
pedient that, on the second Monday in May next, a 
convention of delegates, who shall have been appointed 
by the several states, be held at Philadelphia, for the sole 
and express purpose of revising the Articles of Confeder- 
ation, and reporting to congress and the several legis- 
latures, such alterations and provisions therein as shall, 
when agreed to in congress, and confirmed by the 
states, render the federal constitution adequate to the 
exegencies of government and the preservation of the 
union." Which was agreed to, and then passed by 
congress. 

To this resolution all the states responded, and ap- 
pointed delegates, to meet on the second Monday in May, 
1787, except Rhode Island. 

Each state instructed its delegates to discuss and re- 
port how the Articles of Confederation could be amended 
so as to meet the exigencies of the government and pre- 
serve the ' ' federal wiion, ' ' 



36 CONSTITUTION OF THE UNITED STATES. 

The time for the meeting was the second Monday in 
May, but it was the 25th of that month before enough of 
the delegates reported, to represent a majority of the 
states. 

On Friday, the 25th of May, 1787, delegates from 
New York, New Jersey, Pennsylvania, Delaware, Vir- 
ginia, North Carolina and South Carolina, seven states, 
being present by representation, on motion of R. Morris, 
General Washington was unanimously chosen to take 
the chair as president of the convention. 

After the credentials of the delegates from seven 
states were read, door-keepers, messengers and commit- 
tee on rules were severally appointed ; the convention ad- 
journed over to Monday, the 28th of May, 1787. 

On the 28th, the convention met, and the committee 
on rules reported. After several amendments thereto 
were proposed, the rules were referred back to the same 
committee. On that day delegates from Massachusetts 
and Connecticut reported, making nine states represented 
in the convention. 

The convention, after receiving the delegates from 
said two additional states, adjourned to the next day, it 
being the 29th. 

On the 29th met pursuant to adjournment, and Ed- 
mund Randolph, of Virginia, after an elaborate speech, 
offered a series of resolutions relating to a plan of govern- 
ment to be constructed, which were as follows : 

"1. Resolved, That the Articles of the Confederation 
ought to be so corrected and enlarged as to accomplish 
the objects proposed by their institution ; namely, com- 
mon defense, security of liberty, and general welfare. 

"2. Resolved, Therefore, that the right of suffrage, in 
the national legislature, ought to be proportioned to the 
quotas of contribution, or to the number of free inhabit- 



CONSTITUTION OF 1 787. 37 

ants, as the one or the other may seem best in different 
cases. 

''3. Resolved, That the national legislature ought to 
consist of two branches. 

"4. Resolved, that the members of the first branch of 
the national legislature ought to be elected by the people 

of the several states, every for the term of , to 

be the age of years, at least ; to receive liberal 

stipends, by which they may be compensated for the de- 
votion of their time to the public service ; to be ineligible 
to any office established by a particular state or under 
the authority of the United States (except those peculiarly 
belonging to the functions of the first branch) during the 
term of service and for the space of after its expira- 
tion ; to be incapable of re-election for the space of 

after the expiration of their term of service ; and to be 
subject to recall. 

1 '5. Resolved, That the members of the second branch 
of the national legislature ought to be elected by those of 
the first, out of a proper number of persons nominated 
by the individual legislatures, to be of the age of — — 
years, at least ; to hold their offices for a term sufficient 
to insure their independency ; to receive liberal stipends, 
by which they may be compensated for the devotion of 
their time to the public service ; and to be ineligible to 
any office established by a particular state, or under the 
authority of the United States (except those particularly 
belonging to the functions of the second branch) during 

the term of service ; and for the space of after the 

expiration thereof. 

"6. Resolved, That each branch ought to possess the 
right of originating acts; that the national legislatures 
ought to be empowered to enjoy the legislative rights 
vested in congress by the confederation ; and, moreover, 
to legislate in all cases to which the separate states are 



38 CONSTITUTION OF THE UNITED STATES. 

incompetent, or in which the harmony of the United 
States may be interrupted by the exercise of individual 
legislation ; to negative all laws passed by the several 
states, contravening, in the opinion of the national legis- 
lature, the articles of union, or any treaty subsisting 
under the authority of the union ; and to call forth the 
force of the union against any member of the union fail- 
ing to fulfill its duty under the articles thereof. 

"7. Resolved, That a national executive be instituted, 
to be chosen by the national legislature for the term of 
— — years, to receive punctually, at stated times, a fixed 
compensation for the services rendered, in which no in- 
crease or diminution shall be made, so as to affect the 
magistracy existing at the time of the increase or diminu- 
tion ; to be ineligible a second time ; and that, besides a 
general authority to execute the national laws, it ought 
to enjoy the executive rights vested in congress by the 
confederation. 

"8. Resolved, That the executive, and a convenient 
number of the national judiciary, ought to compose a 
council of revision, with authority to examine every act 
of the national legislature before it shall operate, and 
every act of a particular legislature before a negative 
thereon shall be final ; and that the dissent of the said 
council shall amount to a rejection, unless the act of the 
national legislature be again passed, or that of a particu- 
lar legislature be again negatived by of the mem- 
bers of each branch. 

"9. Resolved, That a national judiciary be established 
— to hold their offices during good behavior, and to re- 
ceive punctually, at stated times, a fixed compensation 
for their services, in which no increase or diminution shall 
be made, so as to affect the persons actually in office at 
the time of such increase or diminution. That the juris- 
diction of the inferior tribunals shall be to hear and de- 



CONSTITUTION OF 1 787. 39 

termine in the first instance, and of the supreme tribunal 
to hear and determine in the dernier ressort, all piracies 
and felonies on the seas, captures from an enemy, cases 
in which foreigners, or citizens of other states applying 
to such jurisdictions, may be interested, or which respect 
the collection of the national revenue ; impeachments of 
any national officer and questions which involve the na- 
tional peace or harmony. 

"10. Resolved, That provision ought to be made for 
the admission of states, lawfully arising within the limits 
of the United States, whether from a voluntary junction 
of government or territory, or otherwise, with the con- 
sent of a number of voices in the national legislature less 
than the whole. 

"11. Resolved, That a republican government and the 
territory of each state (except in the instance of a vol- 
untary junction of government and territory) ought to 
be guaranteed by the United States to each state. 

"12. Resolved, That provision ought to be made for 
the continuance of congress, and their authorities and 
privileges until a given day, after the reform of the arti- 
cles of union shall be adopted, and for the completion of 
all of their engagements. 

"13. Resolved, That provision ought to be made for 
the amendments of the articles of union, whensoever it 
shall seem necessary, and that the assent of the national 
legislature ought not to be required thereto. 

"14. Resolved, That the legislative, executive and 
judiciary powers within the several states ought to be 
bound by oath to support the articles of union. 

"15. Resolved, That the amendments which shall be 
offered to the confederation by the convention ought, at 
a proper time or times, after the approbation of congress, 
to be submitted to an assembly or assemblies of repre- 
sentatives, recommended by the several legislatures, to be 



40 CONSTITUTION OF THE UNITED STATES. 

expressly chosen by the people to consider and decide 
thereon. 

" 1 6. Resolved, That the house will to-morrow resolve 
itself into a committee of the whole house to consider of 
the state of the American Union. ' ' 

Mr. Randolph confessed that they were not intended 
to establish a federal government, but rather a strong, 
consolidated union, in which the states would be nearly 
annihilated. He then moved that they should be taken 
in committee of the whole. 

Mr. C. Pinckney, a member from South Carolina, then 
stated that he had reduced his ideas of a new govern- 
ment to a system, in writing, which he then read, and 
stated that his plan was grounded on the same principles 
as the resolutions of Mr. Randolph. 

The house then resolved to go into committee of the 
whole on the following day, for the consideration of the 
state of the union, and then adjourned to the next 
day. 

On May the 30th the convention met pursuant to ad- 
journment, and resolved itself into committee of the 
whole, and Mr. Gorham, of Massachusetts, was chosen 
as chairman. 

Mr. Randolph then moved to adopt his first resolution. 
Mr. G. Morris observed that it was an unnecessary reso- 
lution, as the subsequent resolution would not agree with 
it. It was then withdrawn by Mr. Randolph and the 
following proposed in its stead : 

"•1. Resolved, That a union of the states, merely fed- 
eral, will not accomplish the objects proposed by the 
Articles of Confederation, namely, ' common defense, se- 
curity, liberty, and general welfare.' 

"2. Resolved \ That no treaty or treaties among the 
states, as sovereign, will accomplish or secure their com- 
mon defense, liberty, or welfare. 






CONSTITUTION OF 1 787. 4 1 

"3. Resolved, That a national government ought to be 
established, consisting of a supreme judicial, legislative, 
and executive." 

Various modifications were proposed to the first resolu- 
tion, and rejected; at last Mr. Pinckney observed : "If 
the convention agrees to it, its business is at an end, as 
the convention met to alter or amend the Articles of 
Confederation only. ' ' 

Thereupon the first and second resolutions were dropped 
and the third only agitated. 

The third had difficulties also in the convention. The 
term supreme had to be explained ; it was asked whether 
it was intended to annihilate the state governments. 
The friends of the resolution assured the convention that 
the states would be interfered with only in so far as their 
powers would clash with those to be granted to the union. 
It was then supported by the votes of Massachusetts, 
Pennsylvania, Delaware, Virginia, North Carolina, and 
South Carolina, for ; Connecticut, New Jersey (and New 
York divided) against. 

The next resolution taken up was as follows : ' l That 
the mode of the present representation is unjust ; that 
the suffrage ought to be in proportion to numbers or 
property. ' ' 

To this Delaware objected and moved a postponement 
of its consideration, which was agreed to. The conven- 
tion then adjourned to the next day. 

From that time on the convention, in committee of 
the whole, was engaged in considering the Randolph 
resolutions, with the various amendments, changes, and 
substitutes offered thereto, until the 13th of June, on 
which day the committee of the whole reported said reso- 
lutions to the convention, after revising, amending, and 
correcting them. 



42 CONSTITUTION OF THE UNITED STATES. 

The said resolutions, as reported to the convention by 
the committee of the whole, were as follows : 

" i. That it is the opinion of this committee that a 
national government ought to be established, consisting 
of a supreme legislative, judiciary, and executive. 

"2. That the national legislature ought to consist of 
two branches. 

"3. That the members of the first branch of the na- 
tional legislature ought to be elected by the people of the 
several states for the terms of three years, to receive 
fixed stipends, etc. (as in the original Randolph reso- 
lution). 

' ' 4. That the members of the second branch of the 
national legislature ought to be chosen by the individual 
legislatures ; to be of the age of thirty years, at least ; 
to hold their offices for a term sufficient to insure their 
independency, namely, seven years ; to receive fixed sti- 
pend, etc. (as in the third resolution). 

"5. That each branch ought to possess the right of 
originating acts. 

"6. That the national legislature ought to be empow- 
ered to enjoy the legislative rights vested in congress 
by the confederation, and, moreover, to legislate in all 
cases to which the separate states are incompetent, or in 
which the harmony of the United States may be inter- 
rupted by the exercise of independent legislation ; to 
negative all laws passed by the several states contraven- 
ing, in the opinion of the national legislature, the articles 
of union. 

"7. That the right of suffrage in the first branch 
of the national legislature ought not to be according to 
the rule established in the Articles of Confederation 
but according to the same equitable ratio of the repre- 
sentation ; namely, in proportion to the whole number of 
white and other free citizens and inhabitants of every 



CONSTITUTION OF 1 787. 43 

age, sex and condition, including those bound to servitude 
for a term of years, and three-fifth of all other persons 
not comprehended in the foregoing description, except 
Indians not paying taxes in each state. 

"8. That the right of suffrage in the second branch 
of the national legislature ought to be according to the 
rule established for the first. 

"9. That a national executive be instituted to consist 
of a single person, to be chosen by the national legisla- 
ture for the term of seven years, with power to carry 
into execution the national laws, to appoint to office in 
cases not otherwise provided for, to be ineligible a second 
time, and to be removable on impeachment and convic- 
tion of malpractice or neglect of duty ; to receive a fixed 
stipend, by which he may be compensated for the de- 
votion of his time to public service, to be paid out of the 
national treasury. 

"10. That the national executive shall have a right to 
negative any legislative act which shall not be afterwards 
passed by two-third parts of each branch of the national 
legislature. 

"11. That a national judiciary be established to con- 
sist of one supreme tribunal, the judges of which to be 
appointed by the second branch of the national legisla- 
ture, to hold their offices during good behavior, to re- 
ceive punctually at stated times a fixed compensation for 
their services, in which no increase or diminution shall 
be made so as to affect the persons actually in office at the 
time of such increase or diminution. 

"12. That the national legislature be empowered to 
appoint inferior tribunals. 

" 13. That the jurisdiction of the national judiciary 
shall extend to cases which respect the collection of the 
national revenue, impeachment of any national officers, 



44 CONSTITUTION OF THK UNITED STATES. 

t 

and questions which involve the national peace and 
harmony. 

"14. That provision ought to be made for the admis- 
sion of states lawfully arising within the limits of the 
United States, whether from a voluntary junction of 
government and territory, or otherwise, with the consent 
of a number of voices in the national legislature less than 
the whole. 

"15. That provision ought to be made for the continu- 
ance of congress and their authorities, until a given day 
after the reform of the Articles of Union shall be adopted, 
and for the completion of all their engagements. 

11 16. That a republican constitution and its existing 
laws ought to be guaranteed to each state by the United 
States. 

"17. That provision ought to be made for the amend- 
ment of the Articles of Union whensoever it shall seem 
necessary. 

" 18. That the legislative, executive and judiciary 
powers within the several states ought to be bound by 
oath to support the Articles of Union. 

"19. That the amendments which shall be offered to 
the confederation by the convention ought at a proper 
time or times after the approbation of congress to be 
submitted to an assembly or assemblies of representa- 
tives, recommended by the several legislatures, to be 
expressly chosen by the people, to consider and decide 
thereon. ' ' 

When this report came to the convention and was 
read it was agreed that consideration of it should be 
postponed until the next day, and the convention then 
adjourned. 

On the 14th of June met in pursuance to adjournment. 
On motion of the Hon. Mr. Patterson, of New Jersey,. 



CONSTITUTION OF 1 787. 45 

the consideration of said report was again postponed and 
the convention adjourned to the next day. 

On the 15th of June met pursuant to adjournment. 
Hon. Mr. Patterson offered eleven resolutions as a sub- 
stitute for the report of the committee of the whole. 
As the first and second of said resolutions of Mr. Patter- 
son will show the main difference between the Patterson 
or New Jersey plan (based entirely on federal principles) 
and the Randolph or Virginia plan (laid mainly on 
national principles), I will copy those two resolutions 
only. They are as follows : 

' ' 1 . Resolved, ■ ' That the Articles of Confederation 
ought to be revised, corrected and enlarged so as to 
render the federal constitution adequate to the exigencies 
of government and the preservation of the union. 

11 2. Resolved, That, in addition to the powers vested in 
the United States in congress, by the present existing 
Articles of Confederation, they be authorized to pass 
acts for raising a revenue, by levying a duty or duties on 
all goods and merchandise of foreign growth or manu- 
facture, imported into any part of the United States ; by 
stamps on paper, vellum, or parchment ; and by a 
postage on all letters and packages passing through the 
general post-office, to be applied to such federal purposes 
as they shall deem proper and expedient ; to make rules 
and regulations for the collecting thereof ; and the same 
from time to time to alter and amend, in such manner as 
they shall think proper. To pass acts for the regulation 
of trade and commerce as well with foreign nations as 
with each other ; provided, that, all punishments, fines, 
forfeitures and penalties, to be incurred for contravening 
such rules and regulations, shall be adjudged by the com- 
mon law judiciary of the states in which any offense con- 
trary to the true intent and meaning of such rules and 
regulations shall be permitted or perpetrated ; with 



46 CONSTITUTION OF THE UNITED STATES. 

liberty of commencing, in the first instance, all suits or 
prosecutions for that purpose in the superior common-law 
judiciary of such state ; subject, nevertheless, to an ap- 
peal for the correction of all errors, both in law and fact, . 
in rending judgment, to the judiciary of the United 
States."* 

It will be remembered that under the Articles of Con- 
federation there was but one branch of congress, and 
each state was entitled to but one vote, without regard 
to population ; the New Jersey or Patterson plan, proposed 
no change as to that provision. With that provision in the 
new form of government, it would have remained absolutely 
federal and have recognized the states as sovereign and have 
left their governments above that of the union, as was 
the case under the Articles of Confederation. And 
as the act of congress calling the convention advised 
that, " the Articles of Confederation be so amended as to 
render them adequate to the exigencies of government, and 
the preservation of the imion" and each of the states 
sending delegates to that convention made use of the 
same language, the New Jersey plan had the merit of 
being in conformity with the powers given to the dele- 
gates in the convention. 

The Virginia, or Randolph, plan departing from in- 
structions proposed to change the government of the 
Union, from a federal to a national form. 

Upon the introduction of Mr. Patterson's resolution, it 
was moved by Mr. Madison and seconded by Mr. Sher- 
man, to refer the Patterson resolutions to a committee of 
the whole, which carried. 

Mr. Rutledge then moved to re-commit the Virginia 
resolutions as amended to the committee of the whole, 



* Elliott's Debates, vol. i, page 175. 



CONSTITUTION OF 1 787. 47 

which was seconded by Mr. Hamilton, and passed in the 
affirmative. 

The convention then adjourned to the next day. 

Those two plans for a government for the union were 
discussed by the committee of the whole, from day to 
day until the 19th of June, when on motion the commit- 
tee agreed to rise and report that it did not agree to the 
Patterson resolutions, and that it adhered to its former 
report. Massachusetts, Connecticut, Pennsylvania, Vir- 
ginia, North Carolina, South Carolina and Georgia, 
seven states for ; and New York, New Jersey and Dela- 
ware against (and Maryland divided). 

The committee of the whole then reported its action to 
the convention on the said 19th of June. 

A motion to postpone the consideration of the first re- 
solve until the next day carried, and the convention then 
adjourned to the next day. 

On June the 20th met agreeably to adjournment. The 
convention then took up the report of the committee of 
the whole, and discussed it with great ability, earnest- 
ness and zeal, from day to day, until the 2d of July. 

The zeal and earnestness with which the advocates of 
the two plans had been discussed, betrayed acrimony 
and bitterness, and it was seriously feared that the con- 
vention would have to adjourn without accomplishing 
any thing. 

To show the want of confidence, as well as the state of 
feeling in the convention at that time, it may not be out 
of place to report a speech made by the Hon. Mr. Bed- 
ford on the 30th of June, which is as follows : 

' ' That all of the states at present are equally sovereign 
and independent, has been asserted from every quarter 
of this house — our deliberations here are a confirmation of 
the position ; and I may add to it, that each of them acts 
from interested and many from ambitious motives. 



48 CONSTITUTION OF THE UNITED STATES. 

I/)ok at the votes which have been given on the floor 
of this house, and it will be found that their numbers, 
wealth and local views have actuated their determina- 
tions, and that the larger states proceed as if our eyes 
were already perfectly blinded. 

" Impartiality, with them, is already out of the ques- 
tion ; the reported plan is their political creed, and they 
support it, right or wrong. 

' ' Even the diminutive state of Georgia has an eye to 
her future wealth and greatness. 

" South Carolina, puffed up with the possession of her 
wealth and negroes, and North Carolina, are all, from 
different views, united with the great states. And these 
latter, although it is said they can never, from interested 
views, form a coalition, we find closely united in one 
scheme of interest and ambition (notwithstanding they 
endeavor to amuse us with the purity of their principle 
and the rectitude of their intentions), in asserting that 
the general government must be drawn from an equal 
representation of the people. Pretenses to support am- 
bition are never wanting. 

' ' Their cry is, ' Where is the danger ? ' And they insist 
that although the powers of the general government will 
be increased, yet it will be for the good of the whole ; 
and although the three great states form nearly a major- 
ity of the people of America, they never will hurt or 
injure the lesser states. / do not, gentlemen, trust you. 
If you possess the power, the abuse of it could not be 
checked ; and what then would prevent you from exer- 
cising it to our destruction? You gravely allege that 
there is no danger of combination, and triumphantly ask, 
' How could combinations be effected ? ' The large 
states, you say, ' all differ in productions and commerce, 
and experience shows that, instead of combinations, they 



CONSTITUTION OF 1 787. 49 

would be rivals, and counteract the views of one an- 
other.' 

" This, I repeat, is language calculated only to amuse 
us. Yes, sir ; the larger states will be rivals, but not 
against each other — they will be rivals against the rest 
of the states. But it is urged that such a government 
would suit the people, and that its principles are equita- 
ble and just. 

' ' How often has this argument been refuted, when 
applied to a federal government ! The small states never 
can agree to the Virginia plan ; and why, then, is it still 
urged ? But it is said that it is not expected that the 
state governments will approve the proposed system, and 
that this house must directly carry it to the people for 
their approbation ! Is it come to this, then, that the 
sword must decide this controversy, and that the horrors 
of war must be added to the rest of our misfortunes ? 

' ' But what have the people already said ? ' We find 
the confederation defective. Go, and give additional 
powers to the confederation — give to it the imposts, regu- 
lation of trade, power to collect the taxes, and the means 
to discharge our foreign and domestic debts. ' 

"Can we not then, as their delegates, agree upon 
these points ? 

"As their ambassadors, can we not clearly grant those 
powers ? Why, then, when we are met, must entire dis- 
tinct and new grounds be taken, and a government of 
which the people had no idea be instituted ? And are 
we to be told, if we won't agree to it, it is the last mo- 
ment of our deliberations ? 

"I say, it is indeed the last moment, if we do not 
agree to this assumption of power. 

' ' The states will never again be entrapped into a 
measure like this. The people will say, ' The small 
states would confederate, and grant further powers to 



50 CONSTITUTION OF THF, UNITED STATES. 

congress, but you, the large states, would not. Then 
the fault would be yours, and all the nations of the earth 
will justify us. But what is to become of our public 
debts, if we dissolve the union ? ' Where is your 
plighted faith ? Will you crush the small states, or must 
they be left unmolested ? Sooner than be ruined, there 
are foreign powers who would take us by the hand. I say 
not this to threaten or intimidate, but that we should re- 
flect seriously before we act. If we once leave this 
floor, and solemnly renounce your new project, what will 
be the consequence ? You will annihilate your federal 
government, and ruin must stare you in the face. I,et 
us, then, do what is in our power — amend and enlarge 
the confederation, but not alter the federal system. 

1 ' The people expect this and no more. We all agree 
in the necessity of a more efficient government — and can 
not this be done ? Although my state is small, I know 
and respect its rights, as much, at least, as those who 
have the honor to represent any of the larger states. ' ' * 

This speech seemed to check the use of severe lan- 
guage, but the debate continued with earnestness until 
the 2d of July, on which day it was agreed to form a 
committee, to try to fall upon some plan, to bring the op- 
posing delegates to an agreement that would avoid the 
calamity of having to adjourn without accomplishing any 
result by the convention. While but a few of the dele- 
gates who had been zealous in the debate, thought any 
good could be accomplished by such a committee, an ad- 
journment without an agreement to a plan of govern- 
ment of some sort, would have so disastrous an effect 
that they agreed to the appointment of the committee to 
consist of a member from each state, which was chosen 
by ballot as follows : Hon. Mr. Gerry, of Massachusetts ; 



* Elliott's Debates (Yate's minutes), vol. i, p. 471. 



CONSTITUTION OF 1 787. 5 1 

Hon. Mr. Ellisworth, of Connecticut ; Hon. Mr. Yates, 
of New York ; Hon. Mr. Patterson, of New Jersey ; Hon. 
Mr. Franklin, of Pennsylvania ; Hon. Mr. Bedford, of 
Delaware ; Hon. Mr. Martin, of Maryland ; Hon. Mr. 
Mason, of Virginia ; Hon. Mr. Davie, of North Caro- 
lina ; Hon. Mr. Rutledge, of South Carolina, and Hon. 
Mr. Baldwin, of Georgia. * 

After the appointment of said committee (which was 
known as the grand committee, so-called because of its 
size), but which proved itself to be truly a grand com- 
mittee by the result of its labors, the convention then 
adjourned to the 5th of July. 

The grand committee met on the 3d of July and 
elected the Hon. Mr. Gerry, chairman ; and soon agreed 
on the terms of a compromise and reported the same on 
the 5th of July as follows : 

' ' The committee to whom was referred the eighth res- 
olution reported from the committee of the whole house, 
and so much of the seventh as had not been decided on, 
submit the following report : 

' ' That the subsequent proposition be recommended to 
the convention on condition that both shall be generally 
adopted. 

"That, in the first branch of the legislature, each of 
the states now in the union be allowed one member for 
every 40,000 inhabitants of the description reported in 
the seventh resolution of the committee of the whole 
house. That each state not containing that number shall 
be allowed one member. 

1 ' That bills for raising or appropriating money, and 
for fixing salaries of the officers of the government of the 
United States, shall originate in the first branch of the 
legislature, and shall not be altered or amended by the 



* Elliott's Debates, vol. 1, pp. 477-78. 



52 CONSTITUTION OF THE UNITED STATES. 

second branch ; and that no money shall be drawn from 
the public treasury but in pursuance of appropriations to 
be originated in the first branch. 

"That in the second branch of the legislature each 
state shall have an equal vote. ' ' * 

Hon. Luther Martin, of Maryland, in a report to that 
state, says, there were three parties in the convention ; 
that one party favored the annihilation of the states and 
the establishment of a strong monarchical government ; 
however, those who openly expressed these views were 
but few, though there were others who did not express 
them openly, who were regarded as favoring them. 

The second party neither favored the abolition of the 
states nor establishment of a monarchy, but wanted a 
government that would give their own states an advan- 
tage over others. 

The third party favored amending the confederation 
so as enable it to raise the necessary means to pay debts 
and render it adequate to the exigencies of government, f 

The compromise as reported by the grand committee, 
was accepted by some of the delegates, as the best they 
could secure from the convention, but others from 
each side withdrew and went home. Those who ap- 
proved it, and those who accepted it without approval, 
proceeded to construct the constitution on the basis of 
the compromise; and but for the irrepressible conflict 
between the delegates from the larger and smaller 
states, they would have had but little difficulty. But 
that unyielding conflict again tied the convention 
up, on providing the mode in which the senators 
should vote ; the smaller states, insisting that the 
senators should vote their respective states as a unit ; 
the larger states, however, insisted that the senators 



* Elliott's Debates, vol. i, p. 478. f Id., pp. 344-45. 



CONSTITUTION OF 1 787. 53 

should vote individually ; the mode contended for by the 
larger states was carried ; and Mr. Madison, in a letter 
to Mr. Sparks, said the return of Mr. Morris to the con- 
vention was opportune to cut the Gordian knot which 
gave the larger states their plan.* 

It is evident from the language of the compromise, and 
the character of the debates preceding the same, that the 
committee intended that the respective states should be 
voted as units in the senate, as the congress did by the 
Articles of Confederation ; and when that provision of 
the compromise was set at naught by the larger states, it 
greatly irritated the delegates from the smaller states ; 
and doubtless to appease them, it was provided that, in 
no event should the constitution be amended so as to de- 
prive any state of equal suffrage in the senate, without 
its consent, which seems to have satisfied the delegates 
from the smaller states. 

The convention was industriously engaged in recon- 
structing the constitution so as to conform to the prin- 
ciples of that compromise, from the 5th day of June (the 
day it was reported by the grand committee), to the 17th 
day of September, 1787-^on which day the convention 
completed its labors. 

On said 17th of September, 1787, the constitution hav- 
ing been completed, agreed to and signed by the delegates 
of the respective states present, the convention, on that 
day, prepared and adopted a resolution, to go with the 
constitution, in its report of that instrument, which is in 
words and figures as follows : 

"IN CONVENTION, 

"Monday, September 17, 1787. 
' ' PrKSKNT — The States of New Hampshire, Connecticut, 
Mr. Hamilton from New York, New fersey, Pennsylvania, 

* Elliott's Debates, vol. 1, page 507. 



54 CONSTITUTION OF THE UNITED STATES. 

Delaware, Maryland, Virginia, North Carolina, South 
Carolina and Georgia. 

1 * Resolved, That the preceding constitution be laid be- 
fore the United States, in congress assembled, and that 
it is the opinion of this convention, that it should after- 
wards be submitted to a convention of delegates, chosen 
in each state by the people thereof, under the recom- 
mendation of its legislature, for their assent and ratifi- 
cation ; and that each convention assenting to, and 
ratifying the same, should give notice thereof to the 
United States in congress assembled. 

"Resolved, That it is the opinion of this convention, 
that, as soon as the conventions of nine states shall have 
ratified this constitution, the United States, in congress 
assembled, should fix a day on which electors should be 
appointed by the states which shall have ratified the 
same, and a day on which electors should assemble to 
vote for the president, and the time and place for commenc- 
ing proceedings under this constitution. That after such 
publication, the electors should be appointed, and the 
senators and representatives elected. That the electors 
should meet on the day fixed for the election of the 
president, and should transmit their votes certified, 
signed, sealed and directed, as the constitution requires, 
to the secretary of the United States in congress as- 
sembled ; that the senators and representatives should 
convene at the time and place assigned ; that the 
senators should appoint a president of the senate for the 
sole purpose of receiving, opening and counting, the 
votes for president ; and that, after he shall be chosen, 
the congress, together with the president, should, with- 
out delay, proceed to execute this constitution,. By the 
unanimous order of the convention. 

"George Washington, President. 

"Wiujam Jackson, Secretary"* 

* Elliott's Debates, vol. i, page 16. 



CONSTITUTION OF 1 787. 55 

Although the delegates to that convention were ap- 
pointed by the respective states represented in it, and 
derived their entire authority from the state appointing 
them, the only provision in the Articles of Confederation 
that authorized the same to be altered, required that all 
alterations should be approved by the congress of the 
United States and afterwards confirmed by the legisla- 
tures of all the states ; therefore the constitution had to 
be reported to congress. 

Congress approved the constitution and by the follow- 
ing resolution referred it to the legislatures of the states : 

"Resolved, unanimously, That the said report, with the 
resolutions and letter accompanying the same, be trans- 
mitted to the several legislatures, in order to be sub- 
mitted to a convention of delegates chosen in each state 
by the people thereof, in conformity to the resolves of 
the convention made and provided in that case. ' ' * 

In conformity with said resolution the legislatures of 
the respective states passed acts calling conventions. 
The several state conventions ratified the constitution 
and reported its actions thereof to congress as follows : 

Delaware ratified the same on the 7th of December, 
1787. 

Pennsylvania ratified same on the 12th of December, 
1787. 

New Jersey ratified same on the 18th of December, 

1787, and proposed amendments thereto. 
Connecticut ratified same on the 9th of January, 1788. 
Massachusetts ratified same on the 7th of February, 

1788, and proposed amendments thereto. 
Georgia ratified same on the 2d of January, 1788. 
Maryland ratified same November, 1788. 



* Elliott's Debates, vol. 1, p. 319. 



56 CONSTITUTION OF THE UNITED STATES. 

South Carolina ratified same on the 22d of May, 1788, 
and proposed amendments thereto. 

New Hampshire ratified same on the 21st of June, 
1788, but did not report its action to congress until the 
2d of July, and proposed amendments thereto. 

Virginia ratified the same on the 26th of June, 1788, 
and proposed amendments thereto. 

New York ratified the same on the 26th of July, 1788, 
and proposed amendments thereto. 

New Hampshire being the ninth state to ratify the 
constitution, when its report to congress came in on the 
2d of July, 1788, on motion of Mr. Clark, seconded by 
Mr. Edwards, congress ordered that the ratification of 
the constitution be referred to a committee to examine 
the same, and report an act to congress for putting the 
constitution in operation. 

On that motion New Hampshire, Massachusetts, Con- 
necticut, New Jersey, Maryland, Pennsylvania, Virginia, 
South Carolina, and Georgia voted yea ; Rhode Island 
was excused and New York was divided, Mr. Yates vot- 
ing nay and Mr. Hamilton yea ; and an act of congress 
was reported and adopted for putting the constitution in 
operation. 

North Carolina ratified the constitution on the 29th of 
May, 1790, and proposed amendments thereto. 

Vermont ratified the same on the 9th of February, 
1 791, on coming into the union after the amendments to 
the constitution had been proposed by congress. 

The first congress at its first session held in New York 
on the 4th of March, 1789, proposed twelve articles of 
amendments to the constitution, and submitted same to 
the legislatures of the respective states for ratification ; 
the respective legislatures took action thereon as follows : 

New Hampshire agreed to all except the second. 

New York agreed to all except the second. 



CONSTITUTION OF 1 787. 57 

Pennsylvania agreed to all except the first and second. 

Delaware agreed to all except the first. 

Maryland agreed to all of them. 

South Carolina agreed to all of them. 

North Carolina agreed to all of them. 

Rhode Island agreed to all of them. 

Virginia agreed to all of them. 

New Jersey agreed to all except the second. 

Massachusetts, Connecticut, Georgia and Kentucky 
took no action on said amendments, although Massachu- 
setts had proposed substantially the same amendments by 
its convention at the time it adopted the constitution. 

The first and second of said articles of amendment 
failing to receive the ratification of enough of the states 
to pass them into the constitution, were lost ; but the re- 
maining ten articles of amendment, receiving the ratifi- 
cation of ten out of fourteen states, were carried, and 
duly declared to be parts of the constitution. 

As said ten articles were proposed by six of the states 
in convention, at the time each of these states ratified 
the constitution, and were proposed by the first congress 
during its first session, they may be considered as part of 
the constitution as originally adopted. 

The changes made in the confederation by the Consti- 
tution of 1787 relate more to the mode of executing the 
government than to the fundamental principles thereof. 

The following is a copy of the constitution with its 
fifteen amendments : 

THK CONSTITUTION OF THE UNITED STATES. 

WK, the People of the United States, in order to form 
a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote the 
general welfare, and secure the blessings of liberty to 



58 CONSTITUTION OF THE UNITED STATES. 

ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

Article I. 
section I. 
i . All legislative powers herein granted shall be vested 
in a congress of the United States, which shall consist of 
a senate and house of representatives. 

SECTION II. 
i. The house of representatives shall be composed of 
members chosen every second year by the people of the 
several states ; and the electors in each state shall have 
the qualifications requisite for electors of the most numer- 
ous branch of the state legislature. 

2. No person shall be a representative who shall not 
have attained to the age of twenty-five years, and been 
seven years a citizen of the United States, and who shall 
not, when elected, be an inhabitant of that state in which 
he shall be chosen. 

3. Representatives and direct taxes shall be appor- 
tioned among the several states which may be included 
within this union, according to their respective numbers, 
which shall be determined by adding to the whole num- 
ber of free persons, including those bound to service for 
a term of years and excluding Indians not taxed, three- 
fifths of all other persons. The actual enumeration shall 
be made within three years after the first meeting of the 
congress of the United States, and within every subse- 
quent term of ten years, in such manner as they shall by 
law direct. The number of representatives shall not ex- 
ceed one for every thirty thousand, but each state shall 
have at least one representative ; and until such enumera- 
tion shall be made the state of New Hampshire shall be en- 
titled to choose three ; Massachusetts, eight ; Rhode Island 



CONSTITUTION OF 1 787. 59 

and Providence Plantations, one ; Connecticut, five ; New 
York, six ; New Jersey, four ; Pennsylvania, eight ; Dela- 
ware, one ; Maryland, six ; Virginia, ten ; North Caro- 
lina, five ; South Carolina, five ; and Georgia, three. 

4. When vacancies happen in the representation from 
any state, the executive authority thereof shall issue 
writs of election to fill up such vacancies. 

5. The house of representatives shall choose their 
speaker and other officers, and shall have the sole power 
of impeachment. 

SECTION III. 

1. The senate of the United States shall be composed of 
two senators from each state, chosen by the legislature 
thereof, for six years ; and each senator shall have one 
vote. 

2. Immediately after they shall be assembled in con- 
sequence of the first election, they shall be divided as 
equally as may be into three classes. The seats of the 
senators of the first class shall be vacated at the expira- 
tion of the second year ; of the second class, at the ex- 
piration of the fourth year ; and of the third class, at the 
expiration of the sixth year ; so that one-third may be 
chosen every second year ; and if vacancies happen, by 
resignation or otherwise, during the recess of the legis- 
lature of any state, the executive thereof may make 
temporary appointments until the next meeting of the 
legislature, which shall then fill such vacancies. 

3. No person shall be a senator who shall not have at- 
tained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when 
elected, be an inhabitant of that state for which he shall 
be chosen. 

4. The vice-president of the United States shall be 
president of the senate, but shall have no vote unless 
they be equally divided. 



60 CONSTITUTION OF THE UNITED STATES. 

5. The senate shall choose their other officers, and also 
a president pro tempore, in the absence of the vice-presi- 
dent, or when he shall exercise the office of president of 
the United States. 

6. The senate shall have the sole power to try all im- 
peachments. When sitting for that purpose, they shall 
be on oath or affirmation. When the president of the 
United States is tried, the chief justice shall preside ; 
and no person shall be convicted without the concurrence 
of two-thirds of the members present. 

7. Judgment, in case of impeachment, shall not extend 
further than to removal from office, and disqualification 
to hold and enjoy any office of honor, trust, or profit 
under the United States ; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, 
judgment, and punishment, according to law. 

SECTION IV. 

1. The times, places, and manner of holding elections 
for senators and representative, shall be prescribed in 
each state by the legislature thereof ; but the congress 
may, at any time, by law, make or alter such regula- 
tions, except as to the places of choosing senators. 

2. The congress shall assemble at least once in every 
year, and such meeting shall be on the first Monday in 
December, unless they shall by law appoint a different day. 

section v. 
1. Each house shall be the judge of the elections, 
returns, and qualifications of its own members ; and a 
majority of each shall constitute a quorum to do busi- 
ness ; but a smaller number may adjourn from day to 
day, and may be authorized to compel the attendance of 
absent members, in such manner and under such penal- 
ties as each house may provide. 



CONSTITUTION OF 1 787. 6 1 

2. Each house may determine the rules of its proceed- 
ings, punish its members for disorderly behavior, and, 
with the concurrence of two-thirds, expel a member. 

3. Each house shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such 
parts as may in their judgment require secrecy ; and the 
yeas and nays of the members of either house, on any 
question, shall, at the desire of one-fifth of those present, 
be entered on the journal. 

4. Neither house during the session of congress, shall, 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two houses shall be sitting. 

SECTION VI. 

1 . The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They 
shall, in all cases, except treason, felony, and breach of 
the peace, be privileged from arrest during their attend- 
ance at the session of their respective houses, and in go- 
ing to or returning from the same ; and for any speech or 
debate in either house, they shall not be questioned in any 
other place. 

2. No senator or representative shall, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United States which shall 
have been created, or the emoluments whereof shall have 
been increased, during such time ; and no person holding 
any office under the United States shall be a member of 
either house during his continuance in office. 

SECTION VII. 

1. All bills for raising revenue shall originate in the 



62 CONSTITUTION OF THE UNITED STATES. 

house of representatives ; but the senate may propose or 
concur with amendments, as on other bills. 

2. Every bill which shall have passed the house of 
representatives and the senate, shall, before it become a 
law, be presented to the president of the United States ;. 
if he approve, he shall sign it ; but if not, he shall re- 
turn it, with his objections, to that house in which it 
shall have originated, who shall enter the objection at 
large on their journal, and proceed to reconsider it. If, 
after such reconsideration, two- thirds of that house shall 
agree to pass the bill, it shall be sent, together with the 
objections, to the other house, by which it shall likewise 
be reconsidered, and if approved by two-thirds of that 
house, it shall become a law. But in all such cases, the 
votes of both houses shall be determined by yeas and 
nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each 
house respectively. If any bill shall not be returned by 
the president within ten days (Sundays excepted) after 
it shall have been presented to him, the same shall be a 
law in like manner as if he had signed it, unless the con- 
gress by their adjournment prevent its return, in which 
case it shall not be a law. 

3. Every order, resolution, or vote, to which the con- 
currence of the senate and house of representatives may 
be necessary, except on a question of adjournment, shall 
be presented to the president of the United States ; and 
before the same shall take effect, shall be approved by 
him, or being disapproved by him, shall be repassed by 
two-thirds of the senate and house of representatives, 
according to the rules and limitations prescribed in the 
case of a bill. 

SECTION VIII. 

The congress shall have power — 

1. To lay and collect taxes, duties, imposts, and ex- 



CONSTITUTION OF 1 787. 63 

cises ; to pay the debts and provide for the common de- 
fense and general welfare of the United States ; but all 
duties, imposts, and excises, shall be uniform throughout 
the United States : 

2. To borrow money on the credit of the United 
States : 

3. To regulate commerce with foreign nations, and 
among the several states, and with the Indian tribes : 

4. To establish a uniform rule of naturalization, and 
uniform laws on the subject of bankruptcies throughout 
the United States : 

5. To coin money, regulate the value thereof, and of 
foreign coin, and fix the standard of weights and meas- 
ures : 

6. To provide for the punishment of counterfeiting the 
securities and current coin of the United States : 

7. To establish post offices and post roads : 

8. To promote the progress of science and useful arts, 
by securing for limited times to authors and inventors the 
exclusive right to their respective writings and discov- 
eries : 

9. To constitute tribunals inferior to the supreme 
court : 

10. To define and punish piracies and felonies com- 
mitted on the high seas, and offenses against the laws of 
nations : 

11. To declare war, grant letters of marque and re- 
prisal, and make rules concerning captures on land and 
water : 

12. To raise and support armies, but no appropriation 
of money to that use shall be for a longer term than two 
years : 

13. To provide and maintain a navy : 

14. To make rules for the government and regulation 
of the land and naval forces : 



64 CONSTITUTION OF THE UNITED STATES. 

15. To provide for calling forth the militia to execute 
the laws of the union, suppress insurrections, and repel 
invasions. 

16. To provide for organizing, arming, and disciplin- 
ing the militia, and for governing such part of them as 
may be employed in the service of the United States, re- 
serving to the states, respectively, the appointment of 
the officers, and the authority of training the militia ac- 
cording to the discipline prescribed by congress. 

17. To exercise exclusive legislation in all cases what- 
soever, over such district, not exceeding ten miles 
square, as may, by cession of particular states, and the 
acceptance of congress, become the seat of government 
of the United States, and to exercise like authority over 
all places purchased by the consent of the legislature of 
the state in which the same shall be, for the erection of 
forts, magazines, arsenals, dock-yards, and other needful 
buildings ; and, 

18. To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this constitution in the 
government of the United States, or in any department 
or officer thereof. 

SECTION IX. 

1. The migration or importation of such persons as 
any of the states now existing shall think proper to 
admit, shall not be prohibited by the congress prior to 
the year one thousand eight hundred and eight, but a 
tax or duty may be imposed on such importation, not 
exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not 
be suspended, unless when, in cases of rebellion or in- 
vasion, the public safety may require it. 

3. No bill of attainder, or ex post facto law, shall be 
passed. 



CONSTITUTION OF 1 787. 65 

4. No capitation or other direct tax shall be laid, un- 
less in proportion to the census or enumeration hereinbe- 
fore directed to be taken. 

5. No tax or duty shall be laid on articles exported 
from any state. No preference shall be given by any 
regulation of commerce or revenue to the ports of one 
state over those of another ; nor shall vessels bound to or 
from one state, be obliged to enter, clear, or pay duties 
in another. 

6. No money shall be drawn from the treasury, but 
in consequence of appropriations made by law ; and a 
regular statement and account of the receipts and ex- 
penditures of all public money shall be published from 
time to time. 

7. No title of nobility shall be granted by the United 
States, and no person holding any office of profit or 
trust under them, shall, without the consent of the 
congress, accept of any present, emolument, office, or 
title of any kind whatever, from any king, prince or 
foreign state. 

SECTION x. 

1. No state shall enter into any treaty, alliance, or 
confederation ; grant letters of marque or reprisal ; coin 
money ; emit bills of credit ; make any thing but gold 
and silver coin a tender in payment of debts ; pass any 
bill of attainder, ex post facto law, or law impairing the 
obligation of contracts ; or grant any title of nobility. 

2. No state shall, without the consent of the congress, 
lay any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its in- 
spection laws ; and the net produce of all duties and im- 
posts, laid by any state on imports or exports, shall be 
for the use of the treasury of the United States, and all 
such laws shall be subject to the revision and control of 



66 CONSTITUTION OF THE UNITED STATES. 

the congress. No state shall, without the consent of 
congress, lay any duty of tunnage, keep troops or ships 
of war in time of peace, enter into any agreement or 
compact with another state, or with a foreign power, or 
engage in war, unless actually invaded, or in such im- 
minent danger as will not admit of delay. 

Article II. 
section I. 

i. The executive power shall be vested in a president 
of the United States of America. He shall hold his 
office during the term of four years, and, together with 
the vice-president, chosen for the same term, be elected 
as follows : 

2. Each state shall appoint, in such manner as the 
legislature thereof may direct, a number of electors, 
equal to the whole number of senators and representa- 
tives to which the state may be entitled in the congress ; 
but no senator or representatives, or person holding an 
office of trust or profit under the United States, shall be 
appointed an elector. 

[3. The electors shall meet in their respective states, 
and vote by ballot for two persons, of whom one at least 
shall not be an inhabitant of the same state with them- 
selves. And they shall make a list of all the persons voted 
for, and of the number of votes for each ; which list they 
shall sign and certify, and transmit sealed to the seat of 
the government of the United States, directed to the 
president of the senate. The president of the senate 
shall, in the presence of the senate and house of repre- 
sentatives, open all the certificates, and the votes shall 
then be counted. The person having the greatest num- 
ber of votes shall be president, if such number be a ma- 



CONSTITUTION OF 1 787. 67 

jority of the whole number of electors appointed ; and if 
there be more than one who have such majority, and 
have an equal number of votes, then the house of repre- 
sentatives shall immediately choose, by ballot, one of 
them for president ; and if no person have a majority, 
then, from the five highest on the list, the said house 
shall, in like manner, choose the president. But, in 
choosing the president, the votes shall be taken by states, 
the representation from each state having one vote ; a 
quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority of 
all the states shall be necessary to a choice. In every 
case, after the choice of the president, the person having 
the greatest number of votes of the electors shall be the 
vice-president. But if there should remain two or more 
who have equal votes, the senate shall choose from them, 
by ballot, the vice-president.*] 

4. The congress may determine the time of chosing 
the electors, and the day on which they shall give their 
votes ; which day shall be the same throughout the 
United States. 

5. No person, except a natural born citizen, or a citi- 
zen of the United States at the time of the adoption of 
this constitution, shall be eligible to the office of presi- 
dent ; neither shall any person be eligible to that office 
who shall not have attained to the age of thirty-five 
years, and been fourteen years a resident within the 
United States. 

6. In case of the removal of the president from office, 
or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall de- 
volve on the vice-president, and the congress may, by 
law, provide for the case of removal, death, resignation, 



* Altered. See Amend., art. 12. 



68 CONSTITUTION OF THE UNITED STATES. 

or inability, both of the president and vice-president, de- 
claring what officer shall then act as president, and such 
officer shall act accordingly, until the disability be re- 
moved or a president shall be elected. 

7. The president shall, at stated times, receive for his 
services a compensation, which shall neither be increased 
nor diminished during the period for which he shall have 
been elected, and he shall not receive within that period 
any other emolument from the United States, or any of 
them. 

8. Before he enter on the execution of his office, he 
shall take the following oath or affirmation : 

9. "I do solemnly swear (or affirm) that I will faith- 
fully execute the office of president of the United States, 
and will, to the best of my ability, preserve, protect, and 
defend the constitution of the United States. ' ' 

SECTION 11. 

1. The president shall be commander-in-chief of the 
army and navy of the United States, and of the militia 
of the several states when called into the actual service 
of the United States ; he may require the opinion, in 
writing, of the principal officer in each of the executive 
departments, upon any subject relating to the duties of 
their respective offices ; and he shall have power to grant 
reprieves and pardons for all offenses against the United 
States, except in cases of impeachment. 

2. He shall have power, by and with the advice and 
consent of the senate, to make treaties, provided two- 
thirds of the senators present concur ; and he shall nom- 
inate, and by and with the advice and consent of the 
senate, shall appoint ambassadors, other public ministers, 
and consuls, judges of the supreme court, and all other 
officers of the United States, whose appointments are not 



CONSTITUTION OF 1 787. 69 

herein otherwise provided for, and which shall be estab- 
lished by law. But the congress may, by law, vest the 
appointment of such inferior officers as they think proper, 
in the president alone, in the courts of law, or in the 
heads of departments. 

3. The president shall have power to fill up all vacan- 
cies that may happen during the recess of the senate, by 
granting commissions which shall expire at the end of 
their next session. 

SKCTION III. 

1. He shall, from time to time, give to the congress in- 
formation of the state of the union, and recommend to 
their consideration such measures as he shall judge neces- 
sary and expedient ; he may, on extraordinary occasions, 
convene both houses, or either of them, and, in case of 
disagreement between them, with respect to the time of 
adjournment, he may adjourn them to such time as he 
shall think proper ; he shall receive ambassadors and 
other public ministers ; he shall take care that the laws 
be faithfully executed ; and shall commission all the 
officers of the United States. 

SECTION IV. 

1. The president, vice-president, and all civil officers of 
the United States, shall be removed from office on im- 
peachment for, and conviction of, treason, bribery, or 
other high crimes and misdemeanors. 

Article III. 

SECTION 1. 
1. The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts 
as the congress may, from time to time, ordain and estab- 
lish. The judges, both of the supreme and inferior 
courts, shall hold their offices during good behavior ; and 



70 CONSTITUTION OP THE UNITED STATES. 

shall, at stated times, receive for their services a compen- 
sation which shall not be diminished during their con- 
tinuance in office. 

SECTION II. 

i. The judicial power shall extend to all cases in law 
and equity, arising under this constitution, the laws of 
the United States, and treaties made, or which shall be 
made, under their authority ; to all cases affecting am- 
bassadors, other public ministers and consuls ; to all cases 
of admiralty and maritime jurisdiction ; to controversies 
to which the United States shall be a party ; to contro- 
versies between two or more states ; between a state and 
citizens of another state; between citizens of different 
states ; between citizens of the same state claiming 
lands under grants of different states ; and between a 
state, or the citizens thereof, and foreign states, citizens 
or subjects. 

2. In all cases affecting ambassadors, other public min- 
isters and consuls, and those in which a state shall be a 
party, the supreme court shall have original jurisdiction. 
In all the other cases before mentioned, the supreme 
court shall have appellate jurisdiction, both as to law and 
fact, with such exceptions, and under such regulations, 
as the congress shall make. 

3. The trial of all crimes, except in cases of impeach- 
ment, shall be by jury ; and such trial shall be held in 
the state where the said crimes shall have been com- 
mitted ; but when not committed within any state, the 
trial shall be at such place or places as the congress may, 
by law, have directed. 

SECTION III. 

1. Treason against the United States shall consist only 
in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort. No person shall be 
convicted of treason unless on the testimony of two wit- 



CONSTITUTION OF 1 787. 71 

nesses to the same overt act, or on confession in open 
court. 

2. The congress shall have power to declare the pun- 
ishment of treason, but no attainder of treason shall 
work corruption of blood or forfeiture, except during the 
life of the person attainted. 

Article IV. 
section 1. 
1. Full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every 
other state. And the congress may, by general laws, 
prescribe the manner in which such acts, records, and 
proceedings shall be proved, and the effect thereof. 

SECTION 11. 

1. The citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several states. 

2. A person charged in any state with treason, felony, 
or other crime, who shall flee from justice, and be found 
in another state, shall, on demand of the executive author- 
ity of the state from which he fled, be delivered up, to 
be removed to the state having jurisdiction of the crime. 

3. No person held to service or labor in one state under 
the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, be discharged 
from such service or labor, but shall be delivered up on 
claim of the party to whom such service or labor may be 
due. 

SECTION III. 

1. New states may be admitted by the congress into 
this union ; but no new state shall be formed or erected 
within the jurisdiction of any other state ; nor any state 
be formed by the junction of two or more states, or parts 



72 CONSTITUTION OF THE UNITED STATES. 

of states, without the consent of the legislature of the 
states concerned, as well as of the congress. 

2. The congress shall have power to dispose of, and 
make all needful rules and regulations respecting the 
territory or other property belonging to the United 
States ; and nothing in this constitution shall be so con- 
strued as to prejudice any claims of the United States, 
or any particular state. 

SECTION IV. 

i . The United States shall guarantee to every state in 
this union a republican form of government, and shall 
protect each of them against invasion, and on application 
of the legislature, or of the executive, when the legisla- 
ture can not be convened, against domestic violence. 

Article V. 
i . The congress, whenever two-thirds of both houses 
shall deem it necessary, shall propose amendments to this 
constitution, or, on the application of the legislatures of 
two- thirds of the several states, shall call a convention 
for proposing amendments, which, in either case, shall 
be valid, to all intents and purposes, as part of this con- 
stitution, when ratified by the legislatures of three-fourths 
of the several states, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may 
be proposed by the congress ; provided, that no amend- 
ment which may be made prior to the year one thousand 
eight hundred and eight, shall in any manner affect the 
first and fourth clauses in the ninth section of the first 
article ; and that no state, without its consent, shall be 
deprived of its equal suffrage in the senate. 

Article VI. 
i . All debts contracted and engagements entered into, 
before the adoption of this constitution, shall be as valid 



CONSTITUTION OF 1 787. 73 

against the United States under this constitution as under 
the confederation. 

2. This constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land ; and 
the judges in every state shall be bound thereby, any- 
thing in the constitution or laws of any state to the con- 
trary notwithstanding. 

3. The senators and representatives before mentioned, 
and the members of the several state legislatures, and all 
executive and judicial officers, both of the United States 
and of the several states, shall be bound by oath or af- 
firmation, to support this constitution ; but no religious 
test shall ever be required as a qualification to any office 
or public trust under the United States. 

Article VII. 

1. The ratification of the conventions of nine states, 
shall be sufficient for the establishment of this constitu- 
tion between the states so ratifying the same. 

Done in Convention, by the unanimous consent of the 
states present, the seventeenth day of September, in 
the year of our L,ord one thousand seven hundred and 
eighty-seven, and of the Independence of the United 
States of America the twelfth. In witness whereof, 
we have hereunto subscribed our names. 

GEORGE WASHINGTON, President, 

and deputy from Virginia. 

New Hampshite. — John L,angdon, Nicholas Gilman. 
Massachusetts. — Nathaniel Gorham, Rufus King. 
Comiecticut. — William Samuel Johnson, Roger Sher- 
man. 

New York. — Alexander Hamilton. 



74 CONSTITUTION OF THE UNITED STATES. 

New Jersey. — William Livingston, David Brearly, Will- 
iam Patterson, Jonathan Dayton. 

Pennsylvayiia. — Benjamin Franklin, Thomas Mifflin, 
Robert Morris, George Clymer, Thomas Fitzsimons, 
Jared Ingersoll, James Wilson, Gouverneur Morris. 

Delaware. — George Read, Gunning Bedford, Jr., John 
Dickinson, Richard Bassett, Jacob Broom. 

Maryland. — James McHenry, Daniel of St. Thomas 
Jenifer, Daniel Carroll. 

Virgi?iia. — John Blair, James Madison, Jr. 

North Carolina. — William Blount, Richard Dobbs 
Spaight, Hugh Williamson. 

South Carolina. — John Rutledge, Charles Cotesworth 
Pinckney, Charles Pinckney, Pierce Butler. 

Georgia. — William Few, Abraham Baldwin. 
Attest : William Jackson, Secretary. 



AMENDMENTS TO THE CONSTITUTION. 

Article I. 

i. Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof ; 
or abridging the freedom of speech or of the press ; or 
the right of the people peaceably to assemble, and to pe- 
tition the government for a redress of grievances. 

Article II. 

i . A well-regulated militia being necessary to the se- 
curity of a free state, the right of the people to keep and 
bear arms shall not be infringed. 

Article III. 
i. No soldier shall, in time of peace, be quartered in 



CONSTITUTION OF 1 787. 75 

any house without the consent of the owner, nor in time 
of war but in a manner to be prescribed by law. 

Article IV. 

1 . The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall 
issue but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 

Article V. 

1 . No person shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment or in- 
dictment of a grand jury, except in cases arising in the 
land or naval forces, or in the militia when in actual ser- 
vice, in time of war or public danger ; nor shall any per- 
son be subject, for the same offense, to be twice put in 
jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be a witness against himself ; nor be de- 
prived of life, liberty, or property, without due process 
of law ; nor shall private property be taken for public use 
without just compensation. 

Article VI. 

1. In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial by an impartial 
jury of the state and district wherein the crime shall have 
been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the wit- 
nesses against him ; to have compulsory process for ob- 
taining witnesses in his favor; and to have the assist- 
ance of counsel for his defense. 



76 CONSTITUTION OF THE UNITED STATES. 

Article VII. 
i . In suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by 
jury shall be preserved ; and no fact tried by a jury shall 
be otherwise re-examined in any court of the United 
States than according to the rules at the common law. 

Article VIII. 
i. Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments in- 
flicted. 

Article IX. 

i. The enumeration in the constitution of certain 
rights shall not be construed to deny or disparage others 
retained by the people. 

Article X. 
i . The powers not delegated to the United States by 
the constitution, nor prohibited by it to the states, are re- 
served to the states respectively, or to the people. 

Article XI. 

i. The judicial power of the United States shall not 
be construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by citizens of another state, or by citizens or subjects of 
any foreign state. 

Article XII. 

i. The electors shall meet in their respective states, 
and vote by ballot for president and vice-president, 
one of whom, at least, shall not be an inhabitant of the 
same state with themselves ; they shall name in their 



CONSTITUTION OF 1 787. 77 

ballots the person voted for as president, and in distinct 
ballots the person voted for as vice-president ; and they 
shall make distinct lists of all persons voted for as 
president, and of all persons voted for as vice-president, 
and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat of 
the government of the United States, directed to the 
president of the senate ; the president of the senate shall, 
in the presence of the senate and house of representa- 
tives, open all the certificates, and the votes shall then be 
counted ; the person having the greatest number of votes 
for president, shall be the president, if such number be a 
majority of the whole number of electors appointed ; and 
if no person have such majority, then from the persons 
having the highest numbers, not exceeding three, on the 
list of those voted for as president, the house of repre- 
sentatives shall choose immediately, by ballot, the presi- 
dent. But in choosing the president, the votes shall be 
taken by states, the representation from each state hav- 
ing one vote ; a quorum for this purpose shall consist of 
a member or members from two-thirds of the states, and 
a majority of all the states shall be necessary to a choice. 
And if the house of representatives shall not choose a 
president, whenever the right of choice shall devolve 
upon them, before the fourth day of March next follow- 
ing, then the vice-president shall act as president, as in 
the case of the death or other constitutional disability of 
the president. 

2. The person having the greatest number of 
votes as vice-president, shall be the vice-president, if 
such number be a majority of the whole number of 
electors appointed ; and if no person have a majority, 
then from the two highest numbers on the list, the sen- 
ate shall choose the vice-president ; a quorum for the 



78 CONSTITUTION OF THE UNITED STATES. 

purpose shall consist of two-thirds of the whole number 
of senators, and a majority of the whole number shall 
be necessary to a choice. 

3. But no person constitutionally ineligible to the office 
of president, shall be eligible to that of vice-president of 
the United States. 

Article XIII. 

1. Neither slavery nor involuntary servitude, except 
as a punishment for crime, whereof the party shall have 
been duly convicted, shall exist within the United States, 
or any place subject to their jurisdiction. 

2. Congress shall have power to enforce this article by 
appropriate legislation. 

Article XIV. 

1 . All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States, and of the state wherein they reside. No 
state shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States ; nor shall any state deprive any person of life, 
liberty, or property, without due process of law, nor deny 
to any person within its jurisdiction, the equal protection 
of the laws. 

2. Representatives shall be apportioned among the sev- 
eral states according to their respective numbers, count- 
ing the whole number of persons in each state, excluding 
Indians not taxed. But when the right to vote at any 
election for choice of electors for president and vice- 
president of the United States, representatives in con- 
grees, the executive and judicial officers of a state, or 
the members of the legislature thereof, is denied to any 
of the male inhabitants of such state being twenty-one 
years of age, and citizens of the United States, or in any 



CONSTITUTION OF 1 787. 79 

way abridged, except for participation in rebellion or 
other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens 
twenty-one years of age in such state. 

3. No person shall be a senator, or representative in 
congress, or elector of president and vice-president, or 
hold any office, civil or military, under the United States, 
or under any state, who, having previously taken an oath 
as a member of congress, or as an officer of the United 
States, or as a member of any state legislature, or as an 
executive or judicial officer of any state, to support the 
Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid 
and comfort to the enemies thereof ; but congress may, 
by a vote of two- thirds of each house, remove such dis- 
ability. 

4. The validity of the public debt of the United States 
authorized by law, including debts incurred for payment 
of pensions and bounties for services in suppressing in- 
surrection or rebellion, shall not be questioned. But 
neither the United States nor any state shall assume or 
pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for 
the loss or emancipation of any slave ; but all such debts, 
obligations, and claims, shall be held illegal and void. 

5. The congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 

Article; XV. 
1. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or 
by any state on account of race, color, or previous con- 
dition of servitude. 



80 CONSTITUTION OF THE} UNITED STATES. 

2. The congress shall have power to enforce this arti- 
cle by appropriate legislation.* 



It will be observed that, by the fifth article of the con- 
stitution, the legislatures may demand a convention sim- 
ilar to the one that made the Constitution of 1787^0 pro- 
pose amendments to the constitution whenever the legis- 
latures of two- thirds of the states shall concur in its call, 
and the congress is obliged to call it,f and whatever amend- 
ment may be proposed by that convention, when ratified 
by conventions in three- fourths of the states, shall be- 
come parts of the constitution, notwithstanding such 
amendments may be opposed by every department and 
officer of the United States. 

This provision, together with that of making the sen- 
ate represent the municipal corporations of the several 
states in the congress of the United States, clearly re- 
tains the governmental authority of the several states, as 
members of the more perfect union of 1787 ; and the 
people of the several states, being represented by the 
members of the house of representatives in the congress, 
clearly shows that the more perfect union consists of a 



* The first ten of the foregoing amendments were proposed 
at the first session of the first congress held under the constitution ; 
the eleventh amendment was proposed at the second session of the 
third congress ; the twelfth, at the first session of the eight con- 
gress ; the thirteenth, at the second session of the thirty-eighth 
congress ; the fourteenth, at the first session of the thirty ninth con- 
gress ; and the fifteenth, at the third session of the fortieth con- 
gress, and were all adopted by the number of states required by the 
fifth article of the original constitution. The thirteenth amend- 
ment was adopted December 18, a. d. 1865 ; the fourteenth, July 
20, 1868, and the fifteenth, March 30, 1870. 

| Letter 85, Federalist, Hamilton, Story's Com. Con. 1830. 



CONSTITUTION OF 1 787. 8 1 

union of the people of the respective states as separate 
societies of people, and a union of the governmental au- 
thority of the respective states ; that, therefore, the con- 
federation was not displaced by the new union of 1787, 
but was retained and added to by the new union, so as to 
make it adequate to the exigencies of government. 



&2 CONSTITUTION OF THE UNITED STATES. 

CHAPTER III. 

CHARACTER OF THE GOVERNMENT. 



The Preamble to the Constitution: 

1 'We, the people of the United States, in order to form 
a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. ' ' 

This preamble has been made the basis for greater 
contrariety in the interpretation of the constitution than 
any other part of that instrument. 

Able statesmen, and the Supreme Court of the United 
States, contend that the preamble should be taken lit- 
erally, and that, when so taken, it shows that the people 
of the United States ordained and established the consti- 
tution, and also claim that the United States was changed 
from a confederation into a sovereign government. 

There are others who claim that the states were never 
free and sovereign states ; on the contrary, that, even 
while the states were but colonies, existing under their 
British charters, they derived their powers from the same 
common sovereign authority, and through that authority 
were connected as one people ; therefore deny that the 
people of the several colonies were ever a separate people. 

This class of statesmen and commentators also claim 
that it was the people in the aggregate of the United 
States who inaugurated the revolutionary war of 1776, 
and that they won their independence as one people. 

It is also claimed by as able statesmen and commenta- 



CHARACTER OF THE GOVERNMENT. 83 

tors, that each colony had a separate existence under its 
British charter, and by its own act separated from England, 
and that, as each threw off its servitude to that kingdom, 
the sovereignty thereof devolved upon the people of that 
particular colony, who constructed a charter for the gov- 
ernment thereof, to derive its powers from themselves as 
the sole sovereign authority ; that charter they called a 
constitution, and expressly reserved to themselves the 
sole authority to alter or abolish the same at will. And 
in the organization of the union under the Articles of 
Confederation, sovereignty was expressly reserved to the 
states. 

They also claim that the people of the several states, 
acting as different societies of people, concurred in the 
constitution without changing the character of the gov- 
ernment from a confederacy, and without the people of 
the respective states surrendering their authority to any 
extent, by adopting the Constitution of 1787 ; but, to the 
contrary, the Articles of Confederation were simply 
amended, so as to increase the powers of the confed- 
eracy, to make it equal to the exigencies of government, 
and to better preserve the union. 

The strongest argument that may be conveniently 
found by general readers, in favor of the United States 
being a nation with sovereign governmental powers is 
contained in the decision of the Supreme Court of the 
United States. 

That court, in the case of Chisholm v. The State of 
Georgia, decided, in 1792,* by a divided court, that the 
United States is a sovereign nation and government, to 
authorize it to take jurisdiction of the parties and the 



* Reported in 2 Dall. 419. 



84 CONSTITUTION OF THE UNITED STATES. 

subject of the action. That ruling of the court caused 
an amendment to the constitution, declaring that the 
constitution should not be so construed as to give juris- 
diction to the federal courts, of actions against any of 
the states, by citizens of another state, or subjects of a 
foreign state. * 

England under the heptarchy constituted a federal 
government, but the kingdoms were each recognized as 
containing sovereignty within itself. 

Every confederacy must be composed of sovereign 
states or nations, and the confederacy must have control 
of that class of powers necessary to maintain the govern- 
ment itself, and its general welfare, so that it will be 
able to protect the component parts against each other 
and against the outside world ; its forces, therefore, 
must be superior to those of the component parts ; hence 
in any contest of authority between the central govern- 
ment and either of its constituent parts, the central gov- 
ernment will always prevail ; consequently, under the 
natural inclination of all governments to increase their 
powers, the sovereign authority of the petty kingdoms of 
the heptarchy were absorbed by the great kingdom. 

The Irish republic was also federal in character, and 
in like manner the authority of the component parts 
were absorbed by the central authority. 

And so it has been with all confederacies that have ex- 
isted before the establishment of the United States, which 
all will admit still consists of a union of states having 
reserved powers ; to which extent, at least, it is federal 
in character. Some who advocate the sovereignty of 
the states claim that that authority resides in the people 
of the states, and deny that any sovereignty exists 



* nth Art. Amendment. 



CHARACTER OF THE GOVERNMENT. 85 

either in the United States government, or in the gov- 
ernment of the states, though they concede that each is 
authorized to use such sovereign forces as may be neces- 
sary to enable it to discharge its corporate duties and 
trusts as agent of the sovereign people. 

To hold, as the supreme court does, that the govern- 
ment of the United States, itself > is sovereign to the ex- 
tent of the objects and powers committed to it, and that 
the state governments are sovereign to the extent of the 
objects and powers committed to them, practically re- 
vives the views of the English Heptarchy, and applies 
that system to this country, in total disregard of the 
great American principle of retaining the sovereignty in 
the people, as shown in the first chapter of this review. 

In the case of Martin v. Hunter's Lessee,* which was 
taken from the court of appeals of Virginia (it being the 
court of last resort of that state), the Supreme Court of 
the United States again decided that the United States 
was a sovereign nation to authorize that court to take 
jurisdiction of the parties and subject of the action, and 
reversed the ruling of the Virginia court of appeals. 
But when the case was sent back to the Virginia court, 
with the mandate of the supreme court to render judg- 
ment in accordance with the supreme court's opinion, the 
judges of the Virginia court, in separate opinions, unani- 
mously agreed that no federal question was involved in 
the case, and refused to obey the mandate of the supreme 
court. The case was again taken to the supreme court. 
On this second appeal, the supreme court adhered to its 
former opinion, and announced that, if the state court 
persisted in refusing to obey the supreme court's man- 
date, that it could send its marshals out to execute its 
writs, but, fortunately for the country, the parties set- 



Reported in 1 Wheaton, 304. 



86 CONSTITUTION OF THE UNITED STATES. 

tied the case among themselves, without forcing the col- 
lision between the federal and state courts. 

In the case of McCulloch v. State of Maryland.* the 
question was, whether that state could tax the United 
States bank, which brought into question the validity of 
the charter of the bank, the state of Maryland denying au- 
thority in the congress to grant the charter, there being 
no power within the letter of the constitution authorizing 
congress to charter banks. The supreme court held the 
United States to be a sovereign nation, and that the 
power to charter banks was incident to that sovereign 
authority. Having reached the conclusion that the char- 
ter was valid, that court went on, and held that the 
power of a state to tax a bank involved the power to de- 
stroy it; therefore refused the state of Maryland the 
right to tax the bank.f 

When the charter of that bank was about to expire, 
the congress sought to renew it by re-enacting the 
charter; but President Jackson vetoed it. 

The president was urged by the friends of the bank to 
approve it, claiming that the supreme court having de- 
cided that the congress had the constitutional authority 
to charter the bank, that his veto under the circum- 
stances would be setting up his judgment against that 
of the congress on a question of policy. But the 
president denying the supreme court's authority to in- 
terpret the constitution for him, and claiming that each 
department must interpret that instrument for itself, and 
that his oath required him to execute the constitution as 
he understood it, and not as somebody else might tell 
him ; he, therefore, vetoed the re-charter on the ground 
of its being unconstitutional. 

It is, however, not the power of congress to charter 



* Reported in 4 Wheaton, 316. f 4 Wheaton, 316. 



CHARACTER OF THE GOVERNMENT. 87 

banks that I wish to consider in this connection, but to 
show that the judges of the Supreme Court of the United 
States are like the judges of the courts of every other 
country, inclined to augment the powers of the govern- 
ment of which they constitute a part. 

As the sovereignty of the United States was more ex- 
tensively discussed in the case of McCulloch v. Maryland, 
I deem it advisable to give some extracts from the reason- 
ing of the supreme court on the question. That court 
said : 

"The convention which framed the constitution was 
indeed elected by the state legislatures. But the instru- 
ment when it came from their hands was a mere proposal 
without obligation or pretension to it. 

' ' It was reported to the then existing congress, . . . 
by the convention, by congress, and by the state legisla- 
tures, the instrument was submitted to the people. They 
acted upon it in the only manner in which they can act 
safely, effectively and wisely on such a subject, by as- 
sembling in convention. It is true they assembled in 
their several states, and where else should they have as- 
sembled ? 

' ' No political dreamer was ever wild enough to think 
of breaking down the lines which separate the states and 
of compounding the American people into one common 
mass. Of consequence when they act, they act in their 
states. But the measures they adopt do not on that ac- 
count cease to be the measures of the people themselves, 
or become the measures of the state governments. 

' ' From these conventions the constitution derives its 
whole authority. The government proceeds directly 
from the people, ' ordained and established in the name 
of the people.' . . 

' ' The assent of the states in their sovereign capacity 
is implied in calling the convention, and thus submitting 



88 CONSTITUTION OF THE) UNITED STATES. 

that instrument to the people. It has been said that the 
people had already surrendered all their power to the 
state sovereignty and had nothing more to give. 

' ( But, surely, the question whether they may resume 
and modify the powers granted to government does not 
remain to be settled in this country. Much more might 
the legitimacy of the general government be doubted had 
it been created by the states. . . 

1 ' The powers delegated to the state sovereignties were 
to be exercised by themselves, not by a distinct and inde- 
pendent sovereignty created by themselves. 

' ' To the formation of a league such as was the confed- 
eration, the sovereignties were certainly competent. But 
when c in order to form a more perfect union ' was neces- 
sary to change this alliance into an effective government 
possessing great and sovereign powers, and acting 
directly on the people, the necessity of referring it to 
the people and of deriving its powers directly from 
them, was felt and acknowledged by all. 

' ' The government of the union then (whatever may 
be the influence of this fact on the case) is emphatically 
and truly a government of the people. In form and sub- 
stance it emanates from them. Its powers are granted 
by them, and for their benefit. 

' ' This government is acknowledged to be one of enum- 
erated powers. 

"The government of the United States, then, though 
limited in its powers, is supreme ; and its laws, when 
made in pursuance of the constitution, form the supreme 
law of the land, any thing in the constitution or laws of 
any state to the contrary notwithstanding. 

"Among the enumerated powers, we do not find that 
of establishing a bank or creating a corporation. But 
there is no phase in the instrument, which like the Ar- 
ticles of Confederation, excludes incidental or implied 



CHARACTER OF THE GOVERNMENT, 89 

powers, and which requires that every thing granted shall 
be expressly and minutely described. 

* ' The creation of a corporation, it is said, appertains to 
sovereignty. This is admitted. But to what portion of 
sovereignty does it belong ? Does it belong to one more 
than to another? In America the powers of sovereignty 
are divided between the government of the union and 
those of the states. They are each sovereign with re- 
spect to the objects committed to it, and neither is 
sovereign with respect to the objects committed to the 
other." 

If the learned court in saying, ' ' the government of the 
union is emphatically and truly a government of the 
people, in form and substance, it emanates from them, its 
powers are granted by them, and for their benefit;" 
means to say its powers emanate from, and were granted 
by, the people of the United States, then it is difficult to 
understand what that court means, in saying no political 
dreamer ever supposed the American people were com- 
pounded into one mass, for, if they acted in mass, or as 
one people in ordaining and establishing the constitution, 
they were compounded into one mass by that act alone. 

Again, just what was meant by that court in saying, 
"but there is no phrase in the instrument, which, like the 
Articles of Confederation, excludes incidental or implied 
powers, ' ' etc. How this was made to harmonize with 
the tenth article of amendment to the constitution, was 
left to conjecture alone, for there is no comment by the 
court relating directly thereto. 

It will be observed that the said tenth article of amend- 
ment provides that, the powers not granted by the co?isti- 
tution to the United States, nor by it, prohibited to the 
states, are reserved to the states respectively, or to the 
people. 

Nothing can be granted by the constitution to the 



90 CONSTITUTION OF THE UNITED STATES. 

United States, or prohibited to the state by it, unless it 
be expressed in that instrument ; for it speaks only by 
the language and expressions made use of in it, and can 
speak in no other way ; hence, unless a power be granted 
to the United States, or prohibited to the states, by ex- 
press language of the constitution, it is expressly re- 
served to the respective states, or to the people. 

Since all powers not expressly granted to the United 
States, or prohibited to the states by the language of the 
constitution, are reserved to the states respectively, or to 
the people, no incidental or implied powers can be ac- 
corded to the United States, without first taking them 
away from, either the states or the people. And as (the 
supreme court concedes) the United States was given 
jurisdiction over a different class of objects of govern- 
ment, than the class of objects over which the jurisdic- 
tion of the states were made to extend, the power of 
the judiciary, to take from either the United States, to 
give to the states, or to take from the states to give to the 
United States, any power not expressed, is in conflict with 
the letter of the constitution, and the exercise of such 
authority by the judiciary amounts to changing the pow- 
ers of the government by the judiciary. 

The court says in this Maryland case : * l In America 
the powers of sovereignty are divided between the gov- 
ernment of the union and those of the states. They are 
each sovereign with respect to the objects committed to 
it, and neither is sovereign with respect to the objects 
committed to the other. ' ' 

Sovereignty is above the law, and whenever it acts, its 
actions are independent of legal restraint ; it must, how- 
ever, act in the manner provided for it to act, else what- 
ever it may do would not be regarded as sovereign acts ; 
and if, as Mr. Blackstone says, "it is supreme, irresist- 
ible, absolute, uncontrollable authority," it can neither 



CHARACTER OE THE GOVERNMENT. 9 1 

be divided nor limited. It is, therefore, difficult to un- 
derstand what that court means by the phrase just quoted, 
unless the court intended to say that each of the govern- 
ments named was authorized to wield separate sovereign 
forces, merely as respective agents of the sovereign 
people. But as powers not delegated by the letter of the 
constitution were adjudged to the United States, on the 
sole ground that they were incident to sovereignty, and 
therefore within the scope of its powers, it is more than 
likely that the court was guided by the theory, ante- 
dating the American system, that every government, 
however constituted, or by whatever authority it may 
subsist, must possess sovereignty somewhere within 
itself, and wholly ignored the bold repudiation of that 
theory by our colonial ancestors, who, upon separa- 
ting from England, received the sovereign authority as 
an inherent right in themselves, and in changing their 
colonies into state governments, based on constitutional 
limitations, reserved that authority to themselves. 

That authority being in themselves, they could, by the 
concurrence of the people of the respective states, author- 
ize the union to wield such sovereign forces as might be 
necessary or proper to enable it to execute its govern- 
mental duties and trusts as the agent of the people of the 
several states, and still retain the sovereignty absolutely 
in themselves, to the extent authority is given to the 
United States to wield sovereign forces, to that ex- 
tent the authority of the United States would be para- 
mount to any authority of any state ; and on the other 
side, to the extent authority to wield sovereign forces are 
reserved to the states by the Constitution of the United 
States, to that extent the authority of the state would be 
paramount, and ought to prevail over the United States. 

The supreme court again, in the case of Gibbon vs. 
Ogden, held the United States to be a sovereign nation, 



92 CONSTITUTION OF THE UNITED STATES. 

and in arguing the question uses strong expressions ; but 
the strongest argument produced by the court consists in 
the change from what the court calls a mere league, with a 
college of ambassadors, into a congress with authority to 
make laws, vests the government of the union with sov- 
ereign authority, and made it a sovereign nation. 

It is well known that each colony existed under a Brit- 
ish charter, and had power to enact laws within the scope 
of the authority contained in its charter, and no one will 
contend that the right to make laws in conformity with 
the limitations imposed by its charter had the effect of 
vesting the colony with sovereignty. The cities of the 
United States generally, if not universally, have a legis- 
lative board with authority to enact ordinances, yet no 
one will contend that the authority of any city to enact 
ordinances under the limitations of its charter has the 
effect to vest it with the sovereign authority of the state 
that granted the charter. 

In this Gibbons case the court again says, there is no 
provision in the constitution requiring a strict construc- 
tion of the grant of power to the United States as was 
the case in the Articles of Confederation. 

If the ninth and tenth articles of amendment to the 
constitution, heretofore referred to, failed to perform that 
function, then the court is correct ; but how the court can 
so construe those provisions is not easy to understand. 

But Mr. Pomeroy in his commentaries on the con- 
stitution, and Mr. John C. Hamilton, in his edition of 
the Federalist, contend that the American people were 
always a united people ; that while they were occupy- 
ing separate colonies, each colony deriving its charter 
from the same sovereign authority, constituted an 
agent of the kingdom of Great Britain, so that by 
reason of being common agents of that kingdom they 
were united as one people, who inaugurated the revo- 



CHARACTER OF THE GOVERNMENT. 93 

lutionary war, and as one people they won the independ- 
ence of the American states. However this may have 
been, the second article of the Articles of Confederation is 
a sufficient answer. 

But Mr. Pomeroy claims that the people ought to be 
considered as constituting the nation or state, not the gov- 
ernment, and that, under the American system, the peo- 
ple have the right to alter or abolish the government and 
reconstruct it at will. But he supposes the sovereignty 
to be in the people of the United States in the aggregate 
instead of being in the people of the respective states ; 
and, therefore, claims that the people of the United 
States being sovereign may change the government at 
will, even to the extent of annihilating the states. 

If the sovereignty is, in fact, in the people of the 
United States in the aggregate, they are certainly above 
the constitution, and according to the provisions of the 
Declaration of Independence they would have the right 
to alter or abolish the whole constitution at will, and 
construct a government on such principles as to them 
may appear most conducive to their welfare and happi- 
ness, even to the abolishment of the states absolutely. 

But I hope to show that the sovereign authority of 
these United States is in the people of the respective 
states, as separate people, under the Constitution of 1787. 

On the side of those who advocate that the United 
States constitutes a federal republic : some contend that 
the sovereignty is in the political organization of the re- 
spective states ; this theory logically leads to the right of 
the states individually to secede from the union at will. 

There are others who accept the theory declared in 
the bill of rights of several of the states, to-wit, that 
the people retain all rights in themselves, and the officials 
are but the agents, trustees and servants of the people, 
without realizing the necessity of providing a distinct 



94 CONSTITUTION OF THE UNITED STATES. 

organ through which to express their sovereign will, and 
another to express their will as subjects of the govern- 
ment. This theory must be based on a supposition that 
the people constitute the state, otherwise the officials 
could not be their direct agents, trustees and servants. 
Among those who advocate this theory Judge St. George 
Tucker is one of the clearest commentators that I have 
been able to find. In his edition of Blackstone's Com- 
mentaries, he gave copious notes of the Constitution of 
the United States, in the form of appendix to the first 
part of the first volume of said edition. 

Judge Tucker, a learned jurist and great logician, 
ably presents his theory of the government of the union, 
showing it to have been formed by compact, and to be 
but a federal republic. 

But in dealing with the political authority, commonly 
denominated the sovereign authority by writers on the 
subject, he fails to exhibit his usual clearness ; but, for 
fear I may be doing him injustice in saying this, and that 
the trouble arises out of my want of ability to under- 
stand him, rather than from his want of clearness, I give 
this extract : 

"But, for reasons which will hereafter be explained, 
I prefer calling it the government, or administrative au- 
thority of the state, to which each citizen subjects him- 
self, by the very act of association, for the purpose of 
establishing a civil society. . . . 

' ' The government, or administrative authority of the 
state, is that portion, only of the sovereignty, which is 
by the constitution intrusted to the public functionaries : 
these are the agents and servants of the people. ' ' * 

The learned jurist accepts Mr. Blackstone's definition 
of sovereignty, and concedes it to be the supreme au- 



* Tucker's Blackstone, Note B, pages 7-9 (Appendix). 



CHARACTER OF THE GOVERNMENT. 95 

thority and beyond control ; therefore it is difficult to 
reconcile his theory of vesting the public officials with a 
part of that authority, even as agents only, for, if it is 
supreme and beyond control, it can not be either divided 
or limited, though agents may be authorized to exercise 
sovereign forces as officers of the sovereign authority. 

And it is equally as difficult to understand how the 
public officials can be vested with any part or all of that 
authority, independently of the government, of which 
they are officers. Their title to the offices must flow 
from the corporate government, and can be maintained 
only by maintaining that entity, and they can be punished 
for malfeasance or misfeasance in office only through that 
government, and whatever powers they may have must 
flow to them through that entity or government. 

For the present I will pretermit the discussion of theo- 
ries, and draw attention to the organization of the United 
States under the Constitution of 1787 ; the lodgment of 
the powers ; the mode of limiting the exercise of the 
granted powers ; and the lodgment of the sovereign au- 
thority to ascertain the character of the government. 

The preamble to the constitution declares that the 
constitution was ordained and established. No govern- 
ment was established, to be divided into departments, as 
was the case with the states. But each department was 
separately ordained and established by the constitution. 

The legislative department was instituted by the first 
article thereof, and its powers and duties minutely de- 
fined ; the first section of which reads as follows : 

' 'All legislative powers herein granted shall be vested 
in a congress of the United States, which shall consist of 
a senate and house of representatives. ' ' 

The second article institutes the executive department, 



96 CONSTITUTION OF THE UNITED STATES. 

and vests it with specific and well-defined powers. The 
first section thereof is as follows : 

' ' The executive power shall be vested in a President 
of the United States of America. He shall hold his 
office during the term of four years, and, together with 
the vice-president, chosen for the same term, be elected 
as follows.' ' 

As the executive has jurisdiction to enforce such laws 
only as may be authorized to be enacted, the meaning of 
this section limits the executive to such laws only as 
may be rightfully passed by the law-making depart- 
ment. 

The third article institutes the judiciary department, 
and vests it with prescribed and well-defined jurisdiction. 
The first section of this article reads as follows : 

"The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts 
as the congress may from time to time ordain and es- 
tablish." . . . 

No powers were granted to the United States as a 
whole. On the contrary, all powers granted by the con- 
stitution are vested by it, in one or the other of these 
three departments. This fact, coupled with the further 
fact, that, with but a very few exceptions, jurisdiction of 
the political laws only, is vested in either of these three 
departments, which leaves them and the United States, 
without jurisdiction of the civil laws, and without au- 
thority to make any laws for the government of any 
people, without which, neither the United States nor 
these three departments combined, can possibly constitute 
a complete government. The United States, failing to 
constitute a government, and having no powers, they can 
not even constitute an agent to conduct the affairs of 
the union. The three departments, therefore, must be 
separate agents, and the only agents of the people who 



CHARACTER OF TH£ GOVERNMENT. 97 

ordained them to manage the affairs of the United States, 
therefore the United States is nothing more than a name 
to indicate the states united. 

Since the jurisdiction of said departments is limited to 
the political laws, neither one of them, nor all of them 
combined, can constitute more than corporate agents of 
the people of the several states united ; and since neither 
one of them, nor all of them combined, can possibly con- 
stitute a complete government, with authority to make 
laws for the people, they must each be a separate agent 
of the sovereign people who ordained and established 
them, and each must perform the function and duties 
committed to it alone. 

Though the duties and functions committed to each 
have relation to the duties and functions committed to 
the other departments, and the aid of each is necessary to 
enable them to perform their respective duties ; each, 
therefore, necessarily constitutes a part of the others, 
though separately ordained and vested with separate 
powers, and is prohibited from encroaching on the 
powers of the others, in executing its own duties. The 
powers and duties committed to these departments being 
necessary to the conducting of the affairs of the union, 
and each department being required to act in harmony 
and in aid of the others, they constitute parts of a 
whole ; and that whole constitutes a municipal agent 
or corporation, deriving its powers from the sovereign 
people who ordained them, and as such municipal cor- 
poration, they bear the same relation to the people that 
a city does to the state that incorporated it, or to that 
borne by the colonies to the sovereign kingdom of Great 
Britain, under their respective charters. 

Furthermore, by article five of the constitution, the 
sovereignty of the United States is recognized to be in 



98 CONSTITUTION OF THE UNITED STATES. 

the people of the states exclusively and absolute^, by 
giving to the states authority to require a federal conven- 
tion to be called to propose amendments to the constitu- 
tion, whenever the legislatures of two-thirds of the states 
shall concur in demanding its call, the congress is obliged 
to provide for it, and call the convention so demanded, 
and has no option to refuse.* 

The federal convention authorized by said article must 
have equal powers to that of 1787, and it may propose 
any amendments or changes in the constitution ; and 
when the changes or amendments proposed by that con- 
vention shall be ratified by conventions in three- fourths 
of the states, they will become parts of the constitution 
and the supreme law of the land ; but until ratified by 
conventions in three-fourths of the states such changes 
would have no force, but amount to mere proposals ; 
therefore, it is the ratification by conventions of the states 
alone that can give them any validity, particularly such 
amendments as will change the form of the government 
or enlarge its powers, or change the race or character of 
those who are to compose the society or family of sover- 
eign people of the nation. 

The supreme court said of the present constitution : 
1 ' It was the ratification by conventions in the states that 
gave it validity, which might be doubted if it had been 
ratified by the state governments, "f 

Judge Story, however, in his Commentaries on the 
Constitution, treats the two modes of amending the con- 
stitution contained in article five of equal validity as to 
any and every amendment authorized by said article, 
whether by proposals made by the congress, to be rat- 



* letter 85, Federalist (Hamilton); Story's Com. on Con., Sec. 
1830. 
f 4 Wheaton, 316, supra. 



CHARACTER OF THE GOVERNMENT. 99 

ified by the legislatures of the states, or by proposals by 
the federal convention, to be ratified by conventions in 
the states ; but as the act of congress would amount to 
proposals only, and be of no validity until ratified by the 
legislatures of the states, either mode of amending the 
constitution will answer my present purpose. I will, 
therefore, postpone further discussion of article five until 
it is reached in the course of this review. 

Since the federal convention authorized by article five 
of the constitution will have the same powers and au- 
thority the Convention of 1787 had, it may propose any 
amendment or change in the constitution, which, when 
ratified by conventions in three- fourths of the states, or 
by the legislatures of three- fourths of the states, shall 
become parts of the constitution, and be regarded as part 
of the supreme law of the land. Hence, so far as it 
affects the power of the states to change the organic law, 
by amending the constitution, it is not material whether 
Judge Story's interpretation of article five be accepted or 
not. For if the legislatures of three-fourths of the states 
could compel the calling of the federal convention to pro- 
pose amendments, and when whatever amendments or 
changes that convention may propose to the constitution 
shall be ratified by conventions in three- fourths of the 
states, the same shall be valid as part of the consti- 
tution. 

Therefore, the states may change the constitution at 
will without the assent of the United States, or any de- 
partment or officer thereof. 

No government can possibly be sovereign as long as it 
is dependent on the will of any other nation or govern- 
ment for its existence. 

The Articles of Confederation declared that the states 
retained their sovereignty and independence, but the as- 
sent of the congress was necessary to make any change 



IOO CONSTITUTION OF THE UNITED STATES. 

in the Constitution of 1777 (better known as the Articles 
of Confederation), and the assent of every state was also 
required to any amendment thereof. 

Therefore, under the Articles of Confederation, the 
sovereign authority to change the organic law was vested 
in the congress and the states together. But under the 
Constitution of 1787 (known as the more perfect union), 
the people of the respective states alone are vested with 
that sovereign authority. The time may come when 
one-fourth of the states may contain a majority of the 
popular vote ; indeed, at this time, twelve of the larger 
states in the union choose a majority of the presidental 
electors, and there being forty-four states in the union, 
it would require eleven states to constitute one-fourth, 
but no eleven states contain a majority of the popular 
vote of the United States. 

Furthermore, the United States never had any citizens 
except those of the several states ; nor can the United 
States have citizens, independently of those of the states, 
without distroying its ability to protect all citizens of the 
United States alike. All who are citizens of any state con- 
stitute citizens of the United States, and the only citizens 
thereof, as will be shown a little further on in this 
chapter. 

It is conceded by the supreme court, and nationalists 
generally, that the political organizations of the states 
(or, as the supreme court chooses to term them, the state 
sovereignties) are represented by the senate of the United 
States. But they claim that the American people are 
represented by the house of representatives in the United 
states congress ; which, according to my understanding, 
is a mistake. On the contrary, the members in the 
house of representatives represent the people of their re- 
spective states only. 

The Constitution of the United States provides that, 



CHARACTER OF THE GOVERNMENT. IOI 

representation and direct taxes shall be apportioned 
among the several states, which may be included within 
this union, according to their respective numbers, which 
shall be determined by adding to the whole number of 
free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three-fifths of 
all other persons. * 

This representation shall be apportioned among the 
states (tz^/ among the people), according to the number 
of persons of the class named, each state may have. 

The number of representatives given to Connecticut, and 
each of the two Carolinas was five members to each state. 
Inasmuch as it was provided that the number of repre- 
sentatives should not exceed one for every thirty thous- 
and (except in case any state should contain less than 
that number of inhabitants, in which latter event, the 
state below the requisite number should have one repre- 
sentative) it must have been thought that the Carolinas 
and Connecticut, each, contained one hundred and fifty 
thousand persons of the class named. 

Now, suppose that each of these states contained one 
hundred and seventy thousand persons of the class named, 
they would each still have been entitled to but five repre- 
sentatives, making but fifteen representatives from these 
three states, whereas, the same population, in any 
one state, would entitle it to seventeen representatives. 
As it is more convenient to count by voters, than popu- 
lation, let us reduce the population to voters by dividing 
by five as a fair estimate ; the two Carolinas and Connec- 
ticut would each have five districts, containing six thou- 
sand and eight hundred voters. Let us suppose further 
that the political sentiment should be nearly equally 

*Sec. 2, Art. i, Con. 



102 CONSTITUTION OF THK UNITKD STATES. 

divided in each of the Carolinas, and in Connecticut it 
should be pretty much one way. In each of the Caro- 
linas the district should give to one party an average of 
six hundred majority, which would give to one party 
three thousand and seven hundred votes, and to the other 
party three thousand and one hundred votes. 

There being in the two Carolinas ten districts, those 
two states would give to the prevailing party thirty-seven 
thousand votes, and to the unsuccessful party thirty-one 
thousand votes. And in Connecticut the party that lost 
the two Carolinas, should get an average of five thousand 
votes, and the winning party in the Carolinas should get 
only eighteen hundred votes in each of the Connecticut 
districts, making twenty- five thousand to be added to the 
thirty-one thousand votes given in the ten districts in the 
two Carolinas, making fifty-six thousand votes in all, 
yet that party would get but five representatives in 
congress ; while the other party, getting only thirty- 
seven thousand votes in the ten districts of the two 
Carolinas, and five thousand votes in the five Connecticut 
districts, making in all forty thousand votes, would elect 
ten out of fifteen representatives, while the fifty-six 
thousand votes would elect only five, out of fifteen rep- 
resentatives. This of itself ought to be sufficient to show 
that the provision was intended to secure representation 
for the people of the states. 

But it is further provided, ' ' that the house of repre- 
sentatives shall be composed of members chosen every 
second year by the people of the several states, and the 
electors in each state shall have the qualifications requi- 
site for electors of the most numerous branches of the 
state legislatures."* 

* Sec. 2, Art. I, Con. 



CHARACTER OF THE GOVERNMENT. 103 

It will be observed that the representation in congress 
must be chosen by the people of the several states, and 
hy no other people. 

It is also provided that, " when vacancies happen in 
the representation from any state, the executive author- 
ity thereof shall issue writs of election to fill such va- 
cancies. ' ' 

If that branch of congress was intended to represent 
the people of the United States, why not have provided 
for the president to issue writs of election to fill such 
vacancies ? 

The president and vice-president of the United States 
are chosen by the states, that is, the electors are elected 
by the people of the several states ; however, each state 
has as many electors as its quota of congressmen and 
senators together, and each elector votes individually, 
and is counted individually in the election, although the 
electors may be voted for by the state at large. 

But should the election of president devolve on the 
house of representatives, the vote is to be taken by 
states, the smaller states amounting to as much as the 
larger states. 

The judges of the supreme court, and of other courts, 
are named by the president and confirmed by the senate. 

Therefore in no event can the people as a people of 
the United States have any thing to do with the filling 
of any office in the United States, and are in nowise 
recognized by the constitution as people of the United 
States. 

It is true, the language of the constitution frequently 
refers to the people of the United States, but the people 
so referred to were evidently the people of the several 
states ; for it is conceded by all that the United States, 
under the Articles of Confederation, was simply a league 
of states, and, as such, could have no citizens ; yet, in 



104 CONSTITUTION OF THE UNITED STATES. 

fixing the qualifications of president, he is required to 
have been a native born citizen of the United States, or 
a citizen thereof at the time of the adoption of the con- 
stitution ; and senators are required to have been nine 
years a citizen thereof ; and members of the house of 
representatives are required to have been citizens thereof 
for seven years. 

As a league of states, the United States could not be 
a government of a people, or a nation of people, for, its 
constituent parts being states only, they could have no 
people ; therefore the United States was incapable of 
having citizens, or maintaining a people ; and this ina- 
bility to maintain a people must have continued until the 
new constitution could be ratified, even if that instru- 
ment had the effect of changing the relation of the United 
States to the states. The framers of the constitution, 
therefore, must have intended to indicate the citizens of 
the several states, who, it is true, were in a qualified 
sense citizens of the confederation, but the obligation of 
the confederation to them flowed through the state they 
inhabited, and their obligation to the United States 
flowed through their respective state, and depended on 
the compact of confederation. 

As the United States was at that time incapable of 
having full citizens, the convention not only prescribed 
impossible qualifications for president, senators and rep- 
resentatives, but made it utterly impossible to ever put 
the constitution in operation, unless the citizenship indi- 
cated was intended to apply to the qualified citizenship, 
arising out of being full citizens of some one of the states 
within the confederation. 

Since, no government was ordained for the United 
States as a whole ; but, to the contrary, three separate 
and distinct departments (to wit), a legislative, execu- 
tive, and judiciary, with exclusive jurisdiction of the 



CHARACTER OF THE GOVERNMENT. 105 

powers, respectively, granted to each of them, were or- 
dained and established. And as every power granted to 
either of said departments, or all of them combined, re- 
lated to authority to said departments to maintain them- 
selves and the autonomy of the states in the union, as 
established by the constitution. And all police powers, 
and authority to make laws for the regulation of society, 
and the protection of the civil and religious rights of the 
people, were reserved to the exclusive jurisdiction of the 
states. 

And, as the people of the states were authorized to elect 
legislatures to demand the call of a convention to pro- 
pose amendments or alterations in the constitution, 
which when ratified by conventions in three-fourths of 
the states shall become part of the organic law. 

And, as the United States has no citizens except by 
virtue of their being citizens of a state in the union 
to make laws for, it is utterly impossible for the United 
States to have a sovereign government ; or a complete 
government of any sort. As the United States has juris- 
diction of the political division of the object of govern- 
ment only, and the states exclusive jurisdiction of the civil 
division of the object of government, it requires both 
to constitute one complete government ; they are each as 
necessary to the other, to constitute a complete govern- 
ment, as the legislative, executive and judiciary depart- 
ments of the governmental agency of the union ; or of 
any of the states are, to constitute a whole. 

But while no powers were granted to the United States, 
in that name, and every power, authorized to be used in 
behalf of the union, was granted to the exclusive juris- 
diction of the legislative, executive, or judiciary depart- 
ments, respectively, the powers granted to each, relate to 
the powers granted to each of the other departments ; 
for no law that might be enacted by the legislative could 



106 CONSTITUTION OF THE UNITED STATES. 

possibly be of any force, unless it could be executed, 
hence these three departments were thus, in a measure, 
united, and as a whole may constitute a municipal cor- 
poration, or governmental agent of the several states 
united. 

Therefore it may be safely claimed, that the great 
American discovery in the science of government, by 
which the people can retain, in themselves, the whole 
sovereign authority, and also be members of the corpo- 
ration, or subjects of the municipal agent instituted by 
themselves, by ordaining a different organ to express 
their sovereign will through (as explained in the first 
chapter hereof) , is retained as a principle of government 
under the Constitution of 1787. And that the American 
discovery, of dividing the two grand objects of govern- 
ment, and giving one of them to one jurisdiction, and 
the other to another and separate jurisdiction, was also 
retained in the more perfect union. 

Hence, the governmental structure of the United 
States, constitutes a municipal agent or corporation — 
enacted by the people of the states united. 

But although the structure for the management of the 
affairs of the union is merely a municipal corporation, or 
agent of the states united, as such it is a trustee of the 
powers and duties reposed in ordaining the constitution, 
and is in duty bound to execute the same. Among the 
duties and trusts reposed we find that of protecting the 
states in the equal enjoyment of their rights and privi- 
leges, as against each other and as against foreign inter- 
ference, and to guarantee to each state a republican form 
of government. 

These duties can not be properly performed without 
authority to maintain the union, and to compel each state 
to contribute to the public defense. 

Hence, not only has the municipal corporation of the 



CHARACTER OF THE GOVERNMENT. 107 

union no authority to assent to the withdrawal of any 
state from the union, but is compelled by the character 
of the trust to prevent any one of the states from with- 
drawing from the union otherwise than by the conven- 
tions provided for by the constitution. 

This does not, however, exclude every other mode of 
escaping from discriminations by a state, or tyranny by 
the public officials ; for, as clearly set forth in the Declara- 
tion of Independeuce, no people can bind themselves to 
a bondage of tyranny or slavery by even the most solemn 
compact, for their freedom is a gift of nature, and they 
have no right to part with it, and may forcibly recover it 
whenever lost from them. 

However, there is no mode prescribed in the consti- 
tution for exercising this right ; hence, whenever it is at- 
tempted to be exercised by force, the attempt will amount 
to rebellion against the constitution, whether the attempt 
be made by authority of the state or otherwise, and it 
will therefore be the duty of the federal corporation or 
government to suppress it, and to use such force as may 
be necessary to put down the rebellion, and no more. 

Although such attempts be rebellion, as long as any 
regard is entertained for the great Declaration of Inde- 
pendence, those who engage in rebellion against discrim- 
inations and tyranny imposed on themselves or their state 
will be respected for their manhood and love of freedom 
and devotion to the great principles of the Declaration of 
Independence and of the Constitution. 

These views are not in harmony with the right of a 
state to secede, as contended for by so many able states- 
men on the southern side of the late civil war. How- 
ever, many who were with me in that war, neither claimed 
the right of the states, individually, to secede, nor de- 
nied the right of the United States to coerce the seceding 
states back into the union. 



108 CONSTITUTION OF THE) UNITED STATES. 

But while we laid no claim to the right of a state to se- 
cede, we claimed the right to forcibly resist the revolution 
gradually and silently going on, by repeated usurpations 
of ungranted powers, which we believed would sooner or 
later undermine the whole fabric of our American sys- 
tem of free governments, and reduce the people to a hu- 
miliating bondage to an arrogant national aristocracy. 
And as that resistance had to be maintained by force of 
arms, it was better to conduct it through state authority, 
as the states could suppress lawlessness and mobs, 
and conduct the war with order and on civilized princi- 
ples, and to a great extent prevent the useless destruction 
of property, and avoid many of the hardships and ravages 
of an internecine war. 

Still, holding the American system of government in 
high esteem, and entertaining a reverence for our revolu- 
tionary sires who gave us that system, and believing that 
under that system the people could maintain their free- 
dom, and recognizing the duty of every generation to 
hand down to its succeeding generation a good and free 
government, bouyed many a soldier on the southern 
side of the late civil war to cheerfully submit to the 
hardships of camp life and the dangers of the battle 
field. 

Technically speaking, the confederates were engaged 
in rebellion ; but it was rebelling against the forms of 
the government, to save the great principles thereof, and 
the freedom and sovereign authority of the people, and 
the principles of liberty set forth in the Declaration of 
Independence and the bill of rights of the respective 
states, which are too deeply rooted in the hearts of the 
American people for them to permit the term rebellion to 
become odious. 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 109 

CHAPTER IV. 

ORGANIZATION OF THE LEGISLATIVE DEPARTMENT. 



Article I. 
Section 1. 

1 All legislative powers herein granted shall be vested 
in a congress of the United States, which shall consist of 
a senate and house of representatives." 

'All legislative power herein granted," shows clearly 
that there are legislative powers that are not granted to 
the United States. 

But. whatever legislative powers were granted to the 
United States, were vested in the congress, consisting of 
a senate and house of representatives. This must, how- 
ever, be taken with some qualification, for, by the seventh 
section of this article, all bills are required to be approved 
by the president before they can become laws ; or, if the 
president disapproves any bill, he is required to so state 
in writing and return it to the house from which it origi- 
nated. Though each house, by a two-thirds vote, can 
re-pass the bill over his veto — thereupon it will become 
a law, notwithstanding the president's veto. 

The president may, therefore, check the congress in 
the exercise of its powers in making laws, and in his veto 
message he may suggest such changes in the bill as would 
make it acceptable to him, consequently, he is to some 
extent a factor in the making of laws in the United 
States. 

In England, the chief executive constitutes a part of 
the parliament ; indeed, the king (who is the chief execu- 



IIO CONSTITUTION OF THE UNITED STATES. 

tive of the realm) sits with the house of lords, either in 
person or by representation. But this has been more fully 
explained in the first chapter, and will be further treated 
of in considering the sessions of congress, to which a 
comparison more appropriately belongs. 

Section 2. 

Paragraph 1. "The house of representatives shall be 
composed of members chosen every second year by the 
people of the several states, and the electors in each state 
shall have the qualifications requisite for electors of the 
most numerous branch of the state legislature." 

Par. 2. "No person shall be a representative who shall 
not have attained the age of twenty-five years, and been 
seven years a citizen of the United States, and who shall 
not, when elected, be an inhabitant of that state in which 
he shall be chosen. ' ' 

Par. 3. ' ( Representatives and direct taxes shall be ap- 
portioned among the several states, which may be in- 
cluded within this union, according to their respective 
numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to 
service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual 
enumeration shall be made within three years after the 
first meeting of the congress of the United States, and 
within every subsequent term of ten years, in such man- 
ner as they shall by law direct. The number of repre- 
sentatives shall not exceed one for every thirty thousand, 
but each state shall have at least one representative ; 
and, until such enumeration shall be made the state of 
New Hampshire shall be entitled to choose three ; Massa- 
chusetts, eight ; Rhode Island and Providence Planta- 
tions, one ; Connecticut, five ; New York, six ; New 
Jersey, four ; Pennsylvania, eight ; Delaware, one ; 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. Ill 

Maryland, six ; Virginia, ten • North Carolina, five ; 
South Carolina, five, and Georgia, three." 

Par. 4. "Where vacancies happen in the representa- 
tion from any state, the executive authority thereof 
shall issue writs of election to fill such vacancies. ' ' 

Par. 5. "The house of representatives shall choose 
their speaker and other officers ; and shall have the sole 
power of impeachment. ' ' 

The organization of the house of representatives was 
considered at length in the third chapter, to show that 
this house represents the people of the respective states, 
instead of a people of the United States in the aggregate ; 
therefore, instead of repeating, reference is here made to 
the consideration of the house of representatives in that 
chapter. 

By the fifth paragraph of this section, it is provided 
that the house of representatives shall have the sole 
power of impeachment. 

This provision does not mean that the house of repre- 
sentatives shall be triers of impeachment, but that it 
shall determine whether impeachment proceedings shall 
be prosecuted in all cases, for it is provided that the sen- 
ate shall try all cases of impeachment ; but when the 
president is under trial, the chief-justice of the supreme 
court shall preside, as will be seen further along. 

The house of representatives therefore acts as a barrier 
against all prosecutions by impeachment, and performs 
the functions of conservatism, in prosecutions for im- 
peachment similar to those that grand juries do, in prose- 
cutions for felonies or penal proceedings. But unlike 
grand juries, which take no part in a prosecution, the 
house of representatives, after finding the bill of indict- 
ment, choose a certain number of their members to con- 
duct the prosecution in all impeachment cases before the 
senate, as a court. 



112 CONSTITUTION OF THE UNITED STATES. 

The senate is required to be under oath or affirmation 
when sitting as a court to try an impeachment, and sits 
alone in all cases except where the president is under 
trial. 

That the house of representatives should be vested 
with power to choose its speaker and other officers, is 
evidently necessary to enable this house to efficiently 
transact its business ; it therefore needs no other comment. 

Section j. 

Par. i . ' ' The senate of the United States shall be com- 
posed of two senators from each state, chosen by the 
legislature thereof, for six years ; and each senator shall 
have one vote. ' ' 

Par. 2. " Immediately after they shall be assembled 
in consequence of the first election, they shall be divided 
as equally as may be, into three classes. The seats of 
the senators of the first class shall be vacated at the ex- 
piration of the second year, of the second class at the 
expiration of the fourth year, and of the third class at 
the expiration of the sixth year, so that one third may 
be chosen every second year ; and if vacancies happen by 
resignation, or otherwise, during the recess of the 
legislature of any state, the executive thereof may make 
temporary appointments, until the next meeting of the 
legislature, which shall then fill such vacancies." 

Par. 3. "No person shall be a senator who shall not 
have attained to the age of thirty years, and been nine 
years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that state for which he 
shall be chosen. ' ' 

Par. 4. "The vice-president of the United States shall 
be president of the senate, but shall have no vote unless 
they be equally divided. ' ' 

Par. 5. "The senate shall choose their other officers, 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 113 

and also a president pro-tempore, in the absence of the 
vice-president, or when he shall exercise the office of 
president of the United States. ' ' 

Par. 6. "The senate shall have the sole power to try- 
all impeachments ; when sitting for that purpose, they 
shall be on oath or affirmation. When the president of 
the United States is tried, the chief -justice shall preside ; 
and no person shall be convicted without the concurrence 
of two-thirds of the members present. ' ' 

Par. 7. "Judgment in case of impeachment shall not 
extend further than removal from office, and disqualifica- 
tion to hold and enjoy any office of trust, honor or profit 
under the United States ; but the party convicted shall nev- 
ertheless be liable and subject to indictment, trial, judg- 
ment and punishment, according to law. ' ' 

It was shown in a former chapter that the members of 
the house of representatives represent the people of the 
states. 

And it will be seen by the provisions of this section 
that the senators represent the political corporation of the 
state that elects them, therefore, as the members of the 
house of representatives represent the people of the states, 
and the senators represent the political corporations of 
the respective states, the United States is truly a union of 
the people of the respective states, and also a union of the 
political corporations of the several states. Since all 
agreed to retain the states, for the management of 
the home affairs thereof, it was necessary for the union 
to consist of a union of the political corporations of 
the states, as well as a union of the people of the sev- 
eral states, for the reason that the states could not 
be retained as states without the people thereof owing alle- 
giance to their respective state corporations, which would 
clash with the allegiance due the governmental corpora- 
tion of the union, hence there must also be a compact and 



114 CONSTITUTION OF THE UNITED STATES. 

agreement between the corporations of the respective 
states. Indeed, the only way to accomplish that har- 
mony between the states and the union, and relieve the 
people of the embarrassing attitude of owing allegiance 
to two different corporations or municipalities was to re- 
tain the corporations of the states, as well as the people 
thereof, in the compact of the union. 

It is true, the people of the states entered into the 
union as sovereigns, not as subjects of the political cor- 
porations of the states, and their action in that regard 
was above the state corporation ; but it is a physical im- 
possibility to make any one equally subject to two differ- 
ent governments at the same time and in the same way. 

The confederation was a union of the political corpora- 
tions of the states only. But the more perfect union 
consists of a union of the sovereign people of the re- 
spective states, as well as the union that had been formed 
under the Articles of Confederation. The sanction of 
the political corporations of the states to the more perfect 
union is shown by sending delegates to the convention 
that framed the constitution, and by afterward calling 
conventions of the people of the respective states to adopt 
the constitution. 

There are leading politicians who advocate the elec- 
tion of the senators by popular election, instead of by 
the legislatures of the states ; therefore, I give this sub- 
ject more attention than seems to be necessary. 

The advocates of electing the senators by the people 
admit that it will require an amendment to the constitu- 
tion, but they say, "Amend the constitution so as to au- 
thorize it to be done. ' ' 

There were delegates in the constitutional convention 
that framed it who thought the people alone should be 
represented in the congress. Among them were the 
Hon. A. Hamilton, James Madison, and many others,. 



ORGANIZATION OF I^KGISIyATlVK DEPARTMENT. 1 15 

who favored a strong central government ; but I name 
Messrs. Hamilton and Madison because they each wrote 
letters approving of the plan of choosing the senators, 
and had them published, while the constitution was be- 
fore the states for ratification. 

Mr. Hamilton said on the subject : 

". . . So far as that mode of formation may ex- 
pose the union to the possibility of injury from the state 
legislatures, it is an evil ; but it is an evil which could 
not have been avoided without excluding the states, in 
their political capacity, wholly from a place in the organ- 
ization of the national government. If this had been 
done, it would doubtless have been interpreted into an 
entire dereliction of the federal principles ; and would 
certainly have deprived the state government of that ab- 
solute safeguard which they will enjoy under this pro- 
vision. . . . " * 

Mr. Madison said : 

". . . It is equally unnecessary to dilate on the ap- 
pointment of senators by the state legislatures. Among 
the various modes which might have been devised for 
constituting this branch of the government, that which 
has been proposed by the convention, is probably the 
most congenial with the public opinion. It is recom- 
mended by the double advantage of favoring a select 
appointment, and of giving to the state governments 
such an agency in the formation of the federal gov- 
ernment as must secure the authority of the former, 
and may form a convenient link between the two sys- 
tems. . . ."f 

He further says in the same letter : 

". . . In this spirit it may be remarked that the 
equal vote allowed to each state is at once a constitu- 



* Letter 59, Federalist. t Letter 62, Federalist. 



Il6 CONSTITUTION OF THE UNITED STATES. 

tional recognition of the portion of sovereignty remain- 
ing in the individual states, and an instrument for pre- 
serving that residuary sovereignty. So far the equality 
ought to be no less acceptable to the large than to the 
small states, since they are not less solicitous to guard, 
by every possible expedient, against an improper consoli- 
dation of the states into one simple republic. ' ' 

Both of these gentlemen, while in the convention that 
framed the constitution, opposed any representation of 
the political organizations of the states in the federal, or, 
as they called it, the "national government," and urged 
a representation of the people only, which would indeed 
have consolidated the United States into one single 
republic, and have left the states no more rights in the 
government than counties have in the government of 
their states ; they had a strong following in the con- 
vention, and succeeded in getting enough support to 
carry this plan in the committee of the whole and to sus- 
tain it in the convention for quite a while ; but it was 
developed in the debates that, if that plan was adhered 
to, many of the states would withdraw and the conven- 
tion would be compelled to adjourn, or, rather, dissolve, 
without coming to an agreement. All of the delegates 
realized the disastrous effect an adjournment of the con- 
vention without agreeing to a plan would have on the 
union, which encouraged a spirit of compromise ; and a 
committee was chosen consisting of a member from each 
state, who readily agreed to retain the political cor- 
porations of the states in the more perfect union, and pro- 
vided that each state (in its political organization) should 
be entitled to equal representation in the senate, and that 
the house of representatives should be apportioned 
among the states according to the number of inhabitants 
thereof. 

This compromise has been referred to before, and prob- 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 117 

ably ought not to be repeated, but it serves the purpose of 
illustrating the importance attached to a representation of 
the political corporation of the respective states. It 
serves to show that, without a representation of the 
corporation of the respective states in the legislative de- 
partment of the union, the more perfect union itself 
would not have been agreed to, and could not have been 
formed. In addition to the great importance attached to 
a representation of the corporations of the states, in the 
federal congress, by the makers of the constitution, a crit- 
ical examination of the great American principles will 
show that it is necessary for the states, as corporate or- 
ganizations, to have a representation in the congress of 
the union, of sufficient strength to prevent improper legis- 
lation against the states, and to enable them to maintain 
jurisdiction of the civil laws and domestic affairs, as pro- 
vided by the American system of government. 

But the advocates, of electing the senators by the peo- 
ple, instead of by the legislatures, claim that the election 
by the people would not prevent the senators from still 
representing the states as political corporations. 

But unless the states, in their organized characters, can 
elect their own representatives in the federal congress, 
how can they be represented therein ? 

It is true the people of the states elect the legislature 
thereof, and those legislatures are the only organs of the 
states to elect their respective senators, but, when so 
elected, they are commissioned as representatives of the 
corporations of the states, and pledged to maintain the 
states in controlling the civil laws and domestic affairs 
thereof, according to the American system, and to elect 
them by the people would annihilate the states, and simply 
amount to adding two more representatives of the people 
from each state to the congress of the United States. 

The senators being elected by the political organiza- 



Il8 CONSTITUTION OF THE UNITED STATES. 

tions of the states, they would naturally be more likely 
to feel their obligations were due to the political organiza- 
tions thereof, and more closely guard the rights of their 
state governments than they would be if elected by the 
people of the states. 

By the charters or constitutions of the several states, 
and by the charter or Constitution of the United States, 
the legislatures of the respective states are made the 
organs to elect the senators to represent the states in the 
congress of the United States ; and the distinction 
between representation of the people of the states, and 
the organization of the states, was closely drawn by the 
framers of the constitution, when they provided that the 
constitution should not be amended so as to deprive any 
state of equal suffrage in the senate. They clearly 
meant to provide perpetually for the equal representation 
of the political organizations of the several states ; there- 
fore, the constitution can not be amended so as to authorize 
the senators in the United States congress to be elected by 
the people, without ignoring the compromise agreed to by 
the grand committee, and accepted by the whole con- 
vention, and afterward ratified by the state, which was, 
probably, the only plane upon which those favoring a 
union of many republics, consisting of the several states, 
and those who favored a consolidation of the states into 
a "simple republic" (as Mr. Madison expressed it), 
could have been brought together on, and should be sa- 
credly kept and closely adhered to. 

It was contended in the convention that there was 
danger in permitting the president to appoint senators to 
offices of trust, etc. , during the continuance of their re- 
spective terms in office ; but they were overruled, on the 
theory that the president ought to have the right to se- 
lect the best qualified persons for the various offices he 



ORGANIZATION OF LEGISLATIVE DEPARTMENT . 119 

was authorized to fill, although they might be then hold- 
ing office of honor, trust and profit. 

Recent events show the wisdom not only of prohibiting 
the president from appointing senators to offices of honor, 
etc. , but that it would have been wise to have prohib- 
ited him from appointing any one to a position on the 
recommendation of any senator, so as to cut him off 
from exerting any influence over the senators through 
his appointing power. The authority of the senate to 
choose its own officers is so manifestly necessary that it 
requires no comment. 

The vice-president is required by the constitution to 
preside over the senate, but the senate may elect one of 
its members to preside in the absence of the vice-presi- 
dent, or when he may be performing the duties of 
president. 

When the original draft of the constitution was com- 
pleted by the committee on detail, the senate was not 
vested with jurisdiction to try impeachments ; that juris- 
diction was at first reposed in the judiciary. 

But, while the constitution was in the hands of the 
committee on style, it was changed, and jurisdiction of 
impeachments was vested exclusively in the senate. As 
the senators represent the political organizations of the 
states, they constitute the proper tribunal to try all im- 
peachments, and experience shows this to have been a 
wise provision. Though it may be unwise theoretically 
to allow so small a proportion as two-thirds of one-half 
to convict, which is only possible, however, for, while 
one-half of the members thereof constitute a quorum, 
and two- thirds of those present may convict, which is 
equal to one- third of the whole, it is not probable that 
only one-half of the members of the senate will ever be 
present on any impeachment trial. 



120 CONSTITUTION OF THE UNITED STATES. 

Section 4.. 

This brings us to the consideration of the powers and 
duties of the two houses of congress when acting to- 
gether. 

Par. 1. "The times, places and manner of holding 
elections for senators and representatives shall be pre- 
scribed in each state by the legislature thereof ; but the 
congress may at any time by law make or alter such reg- 
ulations, except as to the places of choosing senators. ' ' 

Par. 2. "The congress shall assemble at least once in 
every year, and such meeting shall be on the first Monday 
in December, unless they shall by law appoint a different 
day." 

The congress has prescribed the times, places and 
manner of electing senators and representatives, except 
as to the place of choosing senators. 

The act of congress being a statute, and liable to be 
altered at any time, is out of place in a treatise on the 
constitution. Though it is of such importance to have 
the election for congress and presidential electors held on 
the same day throughout the United States, it may not 
be out of place to insert it here, particularly, as the sev- 
eral states have changed their constitutions, fixing their 
respective state elections on the same day, to avoid the 
holding of more than one election in any one year ; it is 
not likely that the congress will change that day. 

The congress, in the exercise of its authority under 
the latter part of section 4 of article 1, just quoted, pro- 
vided for the election of senators and representatives, as 
follows : * 

Sec. 14. "The legislature of each state, which is 



* Title 2 — Revised Statutes of the Congress. Chapter 1 — Elec- 
tion of Senators. 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 121 

chosen next preceding the expiration of the time for 
which any senator was elected to represent such state in 
congress, shall, on the second Tuesday after the meeting 
and organization thereof, proceed to elect a senator in 
congress. ' ' 

Sec. 15. "Such election shall be conducted in the fol- 
lowing manner : Each house shall openly, by a viva voce 
vote of each member present, name one person for sena- 
tor in congress from each state, and the name of the per- 
son so voted for who receives a majority of the whole 
number of votes cast in each house, shall be entered on 
the journal of that house by the clerk or secretary 
thereof ; or if either house fails to give such majority to 
any person on that day, the fact shall be entered on 
the journal. At twelve o'clock meridian of the day fol- 
lowing that on which proceedings are required to take 
place as aforesaid, the members of the two houses shall 
convene in joint assembly, and the journal of each house 
shall then be read, and if the same person has received a 
majority of all the votes in each house, he shall be de- 
clared duly elected senator. But if the same person has 
not received a majority of the votes in each house, or if 
either house has failed to take proceedings as required by 
this section, the joint assembly shall then proceed to 
choose, by a viva voce vote of each member present, a 
person for senator, and the person who receives a ma- 
jority of all the votes of the joint assembly, a majority 
of all the members elected to both houses being present 
and voting, shall be declared duly elected. If no per- 
son receives such a majority on the first day, the joint 
assembly shall meet at twelve o'clock meridian of each 
succeeding day during the session of the legislature, 
and shall take at least one vote until a senator is 
elected." 

Sec. 16. " Whenever on the meeting of the legislature 



122 CONSTITUTION OF THE UNITED STATES. 

of any state, a vacancy exists in the representation of 
such state in the senate, the legislature shall proceed, on 
the second Tuesday after meeting and organization, to 
elect a person to fill such vacancy, in the manner pre- 
scribed in the preceding section for the election of a 
senator for a full term." 

Sec. 17. "Whenever, during the session of the legis- 
latures of any state, a vacancy occurs in the representa- 
tion of such state in the senate, similar proceedings to 
fill such vacancy shall be had on the second Tuesday 
after the legislature has organized and has notice of such 
vacancy. ' ' 

Sec. 18. "It shall be the duty of the executive of the 
state from which any senator has been chosen, to certify 
his election, under the seal of the state, to the president 
of the senate of the United States. ' ' 

Sec. 19. "The certificate mentioned in the preceding 
section shall be countersigned by the secretary of state, 
of the state. ' ' 

This provision has gone before the senate of the United 
States several times for interpretation, and it seems 
finally settled that it requires a majority of the members 
elected to the senate and house of representatives of the 
state, when in joint assembly for that purpose to elect 
a senator to the congress of the United States, and they 
must be present and voting to constitute a quorum for 
that purpose ; that is, a majority of the two houses 
added together, must not only be present, but must vote, 
to constitute the quorum for that purpose.* 

By this act of congress, each state that is entitled to 
more than one member in the house of representatives, is 
required to elect its members by districts composed of 
contiguous territory, but the state or territory is au- 



* McCrery on Elections, etc. 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 1 23 

thorized to lay off the congressional districts within its 
borders. And representatives to congress are required 
to be elected on ' ' the Tuesday after the first Monday in 
November."* 

- 'All votes for representatives in congress must be by 
printed or written ballots, "f 

■ ' The time for holding an election to fill a vacancy of 
a member to congress in a state or territory may be pre- 
scribed by the laws of such state or territory. "J 

Section 22 of said chapter and title, providing that, if 
a state prescribes any disqualification to the male inhabit- 
ants thereof, who are citizens of the United States, other 
than for participation in the rebellion or other crime ; 
shall be curtailed in its representation in congress, was in- 
tended to force the state to allow colored persons residing 
therein to vote. But if literally interpreted, must include 
all lunatics, idiots, and illiterates, not only of that state, 
but those of any other state who may be temporarily re- 
siding therein, consequently it can not be enforced ; and, 
therefore, must be treated as void. 

By the second paragraph of section 4, the congress is 
required to assemble once every year, and is required to 
meet on the first Monday in December in each year, un- 
less a different day be fixed by act of congress. 

As the congress must meet in every year, no session 
can be longer than a year, for every session must adjourn 
in time to give place for the incoming session, as no two 
sessions can exist at one and the same time. 

By the second section of article one it is provided that, 
the members to the house of representatives shall be 
elected every second year ; hence, not only is the con- 
gress compelled to meet every year, but the members of 



* Sec. 25, Chap. 2, Title 2, Rev. Stats. f 27 id. t 2 6 id. 



124 CONSTITUTION OF THE) UNITED STATES. 

the house of representatives must go out of office every 
two years. 

The senators are elected for six years, but they are 
divided into three classes, of one- third each, and the 
terms of the classes were made to begin at different times, 
and so arranged as that one-third thereof go out of office 
every two years, at the same time the members of the 
house of representatives go out. 

Hence, the term of each congress is two years, with a 
session thereof every year, making two sessions, usually 
spoken of as the first, and second session, of a particular 
congress. 

So, that, the congress of the United States has a time 
provided by law to convene and a time that it must ad- 
journ, though it may adjourn on its own motion at an 
earlier date, and generally does adjourn before the ses- 
sions expire by limitation. 

As shown in the first chapter, the British parliament 
has no time fixed by law to meet, and must be called by 
proclamation or royal letter of the king, to be elected be- 
fore it can meet, and its sessions may be prorogued by 
the king, or the king may dissolve the parliament at 
pleasure. 

Hence, the American congress has vastly more power, 
as a department of the government of the United States, 
than the parliament possesses in the government of Eng- 
land. 

The congress can enact no law without the approval 
of the president, unless the congress can pass it over 
his veto. Still the president constitutes no part of the 
congress, either in theory or in fact, and it is no 
part of his duty to suggest any particular legislation, 
except through proclamations, or messages addressed to 
the congress, giving information on subjects that need 
legislation ; and it would be grossly improper for him to 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 1 25 

interfere with the congress in matters of policy, for if he 
can interfere with the congress as to its legislation, the 
congress to that extent would be reduced below a co- 
equal department of the government. 

The appointing power of the president is immense, 
and by giving to one member of congress authority to 
put his friends in office under his appointing power, and 
refusing that advantage to others, he may secure the re- 
election of a favored member, so that by the exercise of 
that power, he may exert quite a pernicious influence 
over the members of congress, and induce them to sup- 
port legislation they are actually opposed to. The 
exercise of that power in that way, is as criminal, as 
any other bribery, and ought to be equally a cause of 
impeachment. 

This comparison between the American Congress and 
the British parliament is drawn because the former was 
evolved out of the latter, and shows the advance in the 
direction of representative government, and the cor- 
responding curtailment of the one-man power, and the 
determination of the American people to so guard the 
representative system as to maintain it against the 
natural inclination of the government to extend the 
power of the chief executive. 

Section 5. 

Par. 1. " Each house shall be the judge of the election 
returns and qualifications of its own members, and a ma- 
jority of each shall constitute a quorum to do business ; 
but a smaller number may adjourn from day to day, and 
may be authorized to compel the attendance of absent 
members, in such manner and under such penalties as 
each house may provide." 

Par. 2. "Bach house may determine the rules of its 
proceedings, punish its members for disorderly behavior, 



126 CONSTITUTION OF THE UNITED STATES. 

and, with the concurrence of two-thirds, expel a mem- 
ber." 

Par. 3. "Each house shall keep a journal of its pro- 
ceedings, and from time to time publish the same, ex- 
cepting such parts as may in their judgment require se- 
cresy ; and the yeas and nays of the members of either 
house on any question shall, at the desire of one-fifth of 
those present, be entered on the journal." 

Par. 4. " Neither house, during the session of con- 
gress, shall, without the consent of the other, adjourn 
for more than three days, nor to any other place than 
that in which the two houses shall be sitting." 

The first paragraph of this section is so definite that it 
needs no comment to explain its meaning, and it is neces- 
sary that they should be authorized to determine the 
election returns and qualifications of its members, to be 
able to know who is entitled to take part in the proceed- 
ings in their respective houses. 

The provision that a bare majority shall constitute a 
quorum, while arbitrary, is perhaps as reasonable and 
just a rule as could have been agreed to. And all will 
concede that each house should have power to prescribe 
its own rules of proceedings, compel the attendance of 
its members, punish them for disorderly behavior and 
expel them when necessary ; and the concurrence of two- 
thirds of the members is a reasonable limitation on the 
exercise of this latter power. 

It is necessary in a free republic to publish the pro- 
ceedings of the legislative department, in order to let the 
people know how their business is being conducted, which 
can not be done without keeping a journal of the pro- 
ceedings thereof. It is, however, claimed by some that 
one-fifth of the members is too small a number to be in- 
trusted with authority to demand a yea and nay vote in 



ORGANIZATION OF I^GISI^TIVB DEPARTMENT. 127 

each house, for the reason, as claimed, it weakens the 
powers of the legislature of the United States. 

It may cause delay in conducting the business ; but if 
calling for the yea and nay vote would have the effect of 
changing the vote of any one member of either house, 
that effect will always be worth the delay caused by it, 
and doubtless many a member would look more care- 
fully into the subject under legislative consideration 
if he knew that his constituents would know how 
he voted, than if that fact was to be concealed from 
them. 

As no law can be enacted without the concurrence of 
each house, prohibiting either house from adjourning 
longer than three days at a time without the consent of 
the other, is not only necessary to secure economy and 
dispatch in conducting the business of the congress, but 
without that provision either house might adjourn to pre- 
vent action on some bill that had been voted for by the 
other house ; as it might be that the vote to adjourn 
could be carried without a yea and nay vote, although 
whenever a vote could be reached on the bill it would 
pass in the house voting to adjourn. 

Sometimes any tactics will be resorted to by either 
party when hard pressed by the other, to defeat the 
enactment of laws relating to the political policy of the 
respective parties, and prohibiting either house from ad- 
journing without the consent of the other cuts off resort- 
ing to that scheme to defeat legislation. 

Section 6. 
Par. 1. " The senators and representatives shall receive 
a compensation for their services, to be ascertained by 
law, and paid out of the treasury of the United States. 
They shall in all cases, except treason, felony and breach of 
the peace, be privileged from arrest during their attend- 



128 CONSTITUTION OF THE UNITED STATES. 

ance at the session of their respective houses, and in go- 
ing to and returning from the same ; and for any speech 
or debate in either house, they shall not be questioned in 
any other place. ' ' 

Par. 2. " No senator or representative shall during the 
time for which he was elected, be appointed to any civil 
office under the authority of the United States, which 
shall have been created, or the emoluments whereof shall 
have been increased, during such time ; and no person 
holding any office under the United States shall be a 
member of either house during his continuance in office. ' ' 

That the members of each house should be paid for 
their services, was thought to be necessary, for the reason 
that many of those who would make the best representa- 
tives of the interests of the people, were too poor to de- 
vote their time to the service of their constituents with- 
out pay ; and to adopt the English rule of not paying 
the members of parliament, would tend to build up an 
aristocracy in the congress, and bring about a system 
of legislating to enable the members of both houses of 
congress to get rich out of legislative speculations. 

That the members of each house should be privileged 
from arrest while attending the session of congress, and 
in going to and from the same, was probably prompted by 
the fact that imprisonment for debt prevailed in some of 
the states at the time the constitution was framed ; how- 
ever that may be, the members of each house while at- 
tending the sessions, and in going to and from the same, 
would be engaged in serving the public, therefore they 
ought not to be interfered with by arrests, except in cases 
of treason, felony or breach of the peace. 

The second paragraph, prohibiting the appointment of 
members of either house to offices created while they 
were in congress, or to offices the emoluments of which 



ORGANIZATION OF LEGISLATIVE DEPARTMENT. 1 29 

shall have been increased while they were in congress, is 
of but little practical value. 

Section 7. 

Par. 1. "All bills for raising revenue shall originate in 
the house of representatives ; but the senate may propose 
or concur with amendments, as in other bills. ' ' 

Par. 2. " Every bill which shall have passed the house 
of representatives, and the senate, shall, before it be- 
comes a law, be presented to the president of the United 
States ; if he approve he shall sign it, but if not he shall 
return it, with his objections, to that house in which it 
shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If 
after such reconsideration two-thirds of that house shall 
agree to pass the bill, it shall be sent, together with the 
objections, to the other house, by which it shall likewise 
be reconsidered, and if approved by two- thirds of that 
house, it shall become a law. But in all such cases the 
votes of both houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill 
shall be entered in the journal of each house respectively. 
If any bill shall not be returned by the president 
within ten days (Sundays excepted) after it shall have 
been presented to him, the same shall be a law, in like 
manner as if he had signed it, unless the congress, by 
their adjournment, prevent its return, in which case it 
shall not be a law." 

Par. 3. " Every order, resolution or vote to which the 
concurrence of the senate and house of representatives 
may be necessary (except on a question of adjournment), 
shall be presented to the president of the United States, 
and before the same shall take effect, shall be approved by 
him, or, being disapproved by him, shall be repassed by 
two- thirds of the senate and house of representatives, ac- 



130 CONSTITUTION OF THK UNITED STATKS. 

cording to the rules and limitations prescribed in the 
case of a bill. ' ' 

This section defines the process of making laws by the 
congress, and it seems so explicit that it can not be made 
any plainer. 

However, it will be seen that it requires every order, 
resolution or vote that requires the concurrence of the 
senate and house of representatives, except that of ad- 
journment, to be laid before the president and approved 
by him or passed over his veto before it can take effect. 

Therefore, while the president constitutes no part of 
the law-making authority of the United States, he is a 
potent agent in preventing the enactment of laws, and in 
that way may dictate what laws may be passed by the 
congress. 

This brings us to the general powers vested in the 
congress. 

It should be borne in mind that every power the con- 
gress is vested with must have been delegated by the 
letter of the constitution, hence, unless it can be found 
in the letter of that instrument, or is a necessary part of 
a power granted by the letter thereof, or is necessary to 
the execution of a power plainly granted by that instru- 
ment, it must be construed to have been reserved to the 
states respectively, or to the people. 



TO LAY AND COLLECT TAXES, ETC. 131 



CHAPTER V. 

TO LAY AND COLLECT TAXES — TO COIN MONEY — TO REG- 
ULATE COMMENCE. 



Article I. 
Section 8. 

Par. 1. "The congress shall have power — 

"To lay and collect taxes, duties, imposts and excises, 
to pay the debts and provide for the common defense 
and general welfare of the United States ; but all duties, 
imposts and excises shall be uniform throughout the 
United States." 

This provision taken by itself appears to vest the con- 
gress with unlimited taxing powers, provided the tax be 
laid, for the purposes of paying the debts, or providing 
for the common defense or general welfare of the United 
States, and also provided all duties, imposts and excise 
taxes be uniform throughout the United States. 

As to the purpose of such taxes, there is no other de- 
partment or officer of the government that has authority 
to inquire into it, except the president, who may veto 
any taxing bill, but, after the president approves the tax- 
ing bill, the only relief against it is by the action of the 
people themselves, who can elect members to a succeed- 
ing congress who will pledge themselves to repeal it. 

Uniformity throughout the United States applies to 
the whole people and country, without regard to state 
boundaries, with a hope of reaching equality through 
that means. 

But neither exact uniformity nor exact equality can 
be expected in a country so large, extending over so 



132 CONSTITUTION OF THE UNITED STATES. 

many degrees of latitude, and embracing such a diversity of 
climate and soil, as to cause the cultivation of different pro- 
ductions ; for even the respective states, being so much 
smaller, and confined to a more homogeneous climate and 
soil, fail to reach exact equality ; however, the United 
States, as well as the states, may closely approximate 
equality in all taxation. 

While the term impost includes various exactions that 
may be imposed on a people, it includes an import 
or tariff tax, and was doubtless intended to vest the 
congress with the power of laying an import tax, and as 
the congress is authorized to designate what articles shall 
be taxed, it may, by selecting the articles to be put under 
an import tax, cause that tax to fall more heavily on one 
class of the people than other classes ; or it may be made 
to fall heavier on the people of some of the states than 
those of other states ; and if the congress is authorized 
to lay a particular and separate rate of tax on each article 
designated to be taxed, instead of an ad valorem tax, as 
contended for by one of the political parties. By the 
designation of the article to be taxed, and the rate of 
tax to be imposed on it, great injustice may, through 
party zeal, be imposed on one class of the people, or on the 
people living in different degrees of latitude. But, as the 
limitation of uniformity in the paragraph under considera- 
tion relates to the effect of the tax rather than the power 
to impose it, the judiciary may relieve those imposed on 
from the unequal burden, without inquiring into the va- 
lidity of the act of congress imposing the tax. No case 
involving this question has ever been passed on by the 
supreme court, that I know of. 

This is, however, the correct interpretation of said 
paragraph. Said paragraph proceeds to vest the congress 
with power to lay and collect taxes, duties, imposts and 
excises, and then proceeds to say, "but all duties, im- 



TO LAY AND COLLECT TAXES, ETC. 1 33 

posts and excises shall be uniform throughout the United 
States;" this provision, therefore, applies to the opera- 
tion of the taxing law, not to its passage ; indeed, a tax- 
ing law might be uniform when enacted, and subsequent 
circumstances might arise that would destroy that uni- 
formity ; it is true, the congress could repeal it as soon as 
it lost that uniformity. 

But, suppose a personal interest of a majority of the 
people should be so strongly in favor of retaining the un- 
equal law as to prevent its repeal. Or suppose a ma- 
jority of the congressional districts should send repre- 
sentatives to congress pledged to enact a taxing law that 
would bear unequally on different classes or localities ; in 
neither case could the law be uniform, and must impose 
unequal burdens on certain classes or sections of the 
United States, whenever it should be put into operation. 

If this language had been put in form of a proviso, it 
would have applied to the enactment of the law, not to 
its operation; the meaning of the language, therefore, is 
that the effect of every law imposing duties, imposts and 
excises shall operate uniformly throughout the United 
States. So that whenever the want of uniformity may 
appear in any of said modes of taxation, it will be the 
duty of the courts to enjoin its enforcement. The con- 
gress is not likely to intentionally impose excise taxes 
unequally without a motive. 

But there are some sections of the United States in 
which the agriculture or planting industries prevail, and 
in other sections manufacturing and mercantile enter- 
prises prevail. The more dense the population may be, 
the better roads and other conveniences for carrying 
manufactured articles and raw material to and from the 
factory, and the greater facility merchants will have for 
selling and shipping. Therefore, if the tariff tax be high 
enough for the manufacturers to divide the profits with 
the merchants, they will want a tariff tax to pro- 



134 CONSTITUTION OF THE UNITED STATES. 

tect them in their business, and to enable them to control 
the trade of the agricultural or planting section of the 
United States. While those who may be engaged in 
agriculture or planting, having no competition from 
abroad in the sale of their production at home, would not 
desire any protective tariff to aid them, particularly as a 
large part of their productions must go to a foreign 
market for sale, and as they sell to a foreign market, they 
would wish to buy their supplies from that foreign 
market, and to get them as cheap as possible. This con- 
flict in interest necessarily leads to a conflict in political 
policy, and has built up two great political parties in the 
United States, one in favor of arranging the tariff taxa- 
tion so as to protect home industries without regard 
to revenue for the United States. The other party 
denying the right of the congress to tax one part of 
the country for the benefit of another, or to tax the 
people engaged in one occupation for the benefit of 
those engaged in other occupations. And while they 
admit the authority of the congress to designate the 
imported articles to be taxed, they deny the authority 
of congress to impose higher rates of duty on some 
articles than on others, and insist that the congress 
must tax all imported articles at the same rates accord- 
ing to the value thereof — this is known as the ad 
valorem system, and the former is known as the specific 
tariff system. 

If the powers of the congress is limited to the ad va- 
lofem system, it will greatly weaken its ability to impose 
unequal burdens upon some sections of the country, for 
the benefit of other sections, or from imposing unequal tax- 
ation on one or more classes of occupations for the benefit 
of other occupations. 

For the character of clothing, and other merchandise, 
used in the agricultural parts of the union are of a much 



TO LAY AND COLLECT TAXKS, ETC. 1 35 

cheaper grade than those used in the mercantile cities 
and manufacturing districts. 

So that to provide the protection demanded by the mer- 
chants and manufacturers, the articles taxed by the tariff 
must be limited to the articles used mostly in planting 
states, or sections, of the union ; and those cheap goods 
must be taxed at a higher rate than the better grade of 
goods used in the manufacturing districts and mercantile 
cities. As the tariff on home goods is high enough 
to prevent importation, the manufacturer with the aid 
of the merchant is enabled to force all laborers within 
any part of the United States to use goods of that grade, 
manufactured under that tariff protection ; and there 
being more laboring people to be clothed in the United 
States than idle, fine dressing people, such a tariff tax 
w r ould reach the whole laboring class of citizens, for the 
benefit of the manufacturers and merchants. 

The other political party insists that it is the duty of 
the United States to protect the manufacturing enter- 
prises, in the discharge of the duty imposed on the con- 
gress, to provide for the general welfare of the United 
States, and that the congress has the right to tax the 
people in any authorized way, to build up manufactures 
in the interest of the general welfare of the United 
States. It is, however, beyond my purpose in giving 
this review to discuss the political features of any ques- 
tion any further than they may be necessary to elucidate 
some provisions of the constitution. I will leave this 
branch of the question, and take up the constitutional 
authority of the congress to discriminate in the matter of 
taxation, or any other imposition on the citizens, in the 
nature of governmental duties. 

The congress, undoubtedly, is authorized to ''lay 
and collect taxes, duties, imposts and excises, to pay the 



136 CONSTITUTION OF THE UNITED STATES. 

debts and provide for the common defense and the gen- 
eral welfare of the United States," and may select the 
objects of such taxation. 

' ' But all duties, imposts and excises shall be uniform 
throughout the United States," and "no capitation or 
other direct tax shall be laid, unless in proportion to 
the census or enumeration hereinbefore directed to be 
taken."* 

" No tax or duty shall be laid on articles exported 
from any state, "f 

' ' No preference shall be given by any regulation of 
commerce or revenue to the ports of one state over those 
of another ; nor shall vessels bound to, or from one 
state, be obliged to enter, clear or pay duties in 
another. ' ' J 

While the word equality is not used in either of these 
provisions, they show that equality in the burdens of the 
government was the design of each one of them. But 
for the purpose of inquiring into the power of the con- 
gress to lay and collect taxes, etc., suppose we admit 
that equality is not required by said provision of the con- 
stitution, and if uniformity throughout the United States 
be followed by the congress, in taxation and laying burdens 
on the people, nothing else can be required ; still it will 
be difficult to see how the congress can lay and collect a 
tariff tax for the purpose of protecting manufacturing 
enterprises, although they may redound to the general 
welfare of the United States, for the simple reason that 
any tariff tax that will afford protection to any particular 
character of industry, can not be made uniform through- 
out the United States. 

For, to protect an industry by means of a tariff tax, 



* Art. 1, Sec. 9, Par. 4, Con. f Id. Par. 5, J Id. Par. 6. 



TO LAY AND COLLECT TAXES, ETC. 1 37 

that tax must fall exclusively on other industries in 
order to protect the favored industry, every tariff tax 
must therefore bear unequally, to favor any one industry 
over others. 

However, a tariff tax intended to be both equal and 
uniform may operate more beneficially to one character of 
industry than to another ; in all such cases the object of 
the taxing law is equality, therefore, its unequal bearing 
must be so slight as not to impose heavy burdens on any 
class or classes. But whether the inequality of the tariff 
tax proceeds from design or accident, the United States 
includes such a variety of climate, and the productions 
and industries are of such a heterogeneous character, 
as to make it impossible for the congress to enact a 
tariff law that discriminates between classes of occupa- 
tions, that will not also discriminate between localities, 
and, therefore, lack the uniformity required by the con- 
stitution. 

Such discriminations are further guarded against by 
the following provisions : 

"No tax or duty shall be laid on articles exported 
from any state." 

' ' No preference shall be given by any regulation of 
commerce or revenue to the ports of one state over those 
of another ; nor shall vessels bound to, or from, one 
state be obliged to enter, clear or pay duties in an- 
other." 

These two paragraphs clearly show the right of the 
states to require uniformity of tariff or import taxa- 
tion, but they appear to be limitations on the power 
of the congress to enact a law taxing articles ex- 
ported from any state, or showing a preference to the 
ports of one or more states over those of other states, 
and when such discrimination is shown the law itself is 
void, because the congress had no authority to pass it ; 



138 CONSTITUTION OF THE UNITED STATES. 

on the contrary was expressly prohibited from pass- 
ing it. 

It is not clear what steps the states can take to en- 
force their rights to uniformity in that character of 
burdens. However, the importer of the articles so 
taxed may raise the question by refusing to pay the 
duty, and let the custom officer seize them to be 
sold for the duty on them ; then the importer can 
sue for the articles, and use the name of his state, 
if it had been discriminated against, in conjunction 
with his own name ; and should the court find that 
a preference had been shown to the ports of one state 
over those of another, the court would be compelled 
to hold the law void ; or if it should be found that 
the tax was not uniform throughout the United States, 
the court being required to look to the effect of the 
act of congress relating thereto, ?iot to the validity 
thereof, would be compelled to grant the relief, and 
have the articles delivered without payment of the duty 
on them. 

There is still a further limitation on the power of the 
congress to lay and collect taxes, as follows : 

" No capitation, or other direct tax, shall be laid, un- 
less in proportion to the census or enumeration hereinbe- 
fore directed to be taken. ' ' 

Every direct tax is not necessarily a capitation or per- 
sonal tax, as in the case of taxing lands, which are always 
taxed specifically, without regard to the ownership of 
them, or liens upon them, though every capitation or 
personal tax must be direct. 

The language ' ' no capitation or other direct tax ' ' was 
evidently intended to include every character of personal 
tax, and probably the tax on land was not on the minds 
of the framers of the constitution, as either a capitation 



TO LAY AND COLLECT TAXES, ETC. 1 39 

or direct tax ; for no people can constitute a nation, or 
state, without a territorial boundary to own and possess 
to the exclusion of all other people. Hence, to consti- 
tute a state or nation, there must be a people separate 
from and distinguishable from every other people, 
who must have possession and control of a territo- 
rial boundary, separated and distinguishable from the 
balance of the territory of the world, with power to 
exclude it from the use or occupation of all other 
people, except by sufferance of themselves ; therefore, no 
state treats the lands within its borders as personal 
property in its taxing laws, but lays taxes on the lands 
specifically. It is true the owner of the land is named in 
the tax levy or assessment as the one who is to pay the 
tax, though not as following his person as owner thereof, 
but rather as the occupant paying a rent charge to the 
state as lord of the fee than as a tax due from the occupant 
as owner thereof. 

The facts are, the final and absolute title to the lands 
in the several states of this union belongs to the state in 
which they are situated, and the citizen to whom it ap- 
pears to belong owns simply an estate therein, which 
must always be subject to the support of the state, as the 
only safe reliance from which to obtain the necessary 
means to defray the expenses of the state government ; 
and in order to retain absolute contral of the lands 
therein, the state retains the absolute title and eminent 
domain of all the lands within its borders as a necessary 
attribute of its sovereignty. 

Furthermore, at the time the constitution was 
adopted, many of the states had more vacant land 
within their respective borders than had been appro- 
priated or settled, and as the apportionment of direct 
taxes was required to be made according to the enumera- 



140 CONSTITUTION OF THE UNITED STATES. 

tion of the population, without regard to the property, 
or the value of the taxable property within each state, 
the small states with but little vacant and unappropriated 
lands would have been imposed on by an unequal taxa- 
tion by the terms of a provision intended to give them 
equal protection under the constitution. 

If the absolute title and eminent domain to the lands 
within the states be recognized to be in the state, or the 
great body of the people thereof, as sovereign owners of 
it, and that nothing passes by the patent for the land ex- 
cept an estate less than the absolute fee, the state retain- 
ing the absolute title in itself, as lord of the fee, and 
therefore not subject to be taxed by the United States, it 
w T ill greatly simplify the method of laying and collecting 
direct taxes by the congress. As all valuable stocks in 
corporations, and all mortgage bonds, are secured by 
liens on whatever estate in land that passes under the 
patent to the grantee, hence if the patentee gets less than 
the absolute title by the grant, nothing more than that 
which passes to the patentee can be pledged to secure 
such stocks or bonds ; therefore, neither can be treated 
as part of the land. The absolute title in the lands them- 
selves being retained in the state, they could not be mort- 
gaged or pledged. Though whatever estate may have 
passed by the patent would be subject to be pledged to se- 
cure the stocks or bonds aforesaid, and such stocks and 
bonds would depend on an estate carved out of land, and 
not on land itself, therefore, while such stocks and bonds 
may be said to constitute a part of the estate in the lands 
pledged to secure them, they could not be held to be any 
part of the lands so pledged, any more than a lease for a 
term of years of the land, and the profits arising out of 
such a lease, and such estates in lands being equitable 
charges, carved out of the estate granted by the state in 



TO I, AY AND COLLECT TAXES, ETC. 141 

the patent to the land ; the right thereof attaches to the 
person, and follows the stocks and bonds into the hands 
of whomsoever they may pass, and the courts of any 
state having jurisdiction of the person of the holder 
thereof may adjudicate as to the right, though by special 
laws of the respective states, statutes to foreclose mort- 
gages therein have been made local. But this provision 
of the legislatures of the states can not be strictly ad- 
hered to, for in case of a mortgage on a railroad extend- 
ing through two or more states, the courts of either state 
have jurisdiction to foreclose the mortgage and order a 
sale. 

Stocks and bonds constitute the great bulk of the 
money capital of this country, and if they are to be 
treated as a part of the lands in regard to taxation, it 
will so limit the powers of congress in laying and collect- 
ing taxes to pay the public debt and provide for the pub- 
lic defense as to cause great embarrassment and delay in 
providing for the general welfare of the United States, 
while if such stocks and bonds be treated as part of an 
estate carved out of the land, they may be taxed on ex- 
cise principles in form of an income tax, and thereby do 
away with the necessity of apportioning that tax among 
the states as a direct tax. 

The difficulty in laying and collecting taxes on land by 
the congress is sufficient to prevent them from being 
taxed at all for purposes of the United States, and if the 
stocks and bonds of railroads, telegraph lines, street rail- 
roads, ice factories, and the like, are to be regarded as a 
part of the land included in the mortgage to secure them, 
they will also escape federal taxation ; and as that char- 
acter of property has grown to such a large volume of 
the taxable property, if the congress is to be deprived of 
the use of that source of raising revenue to provide for 
the payment of the debts and the common defense and 



142 CONSTITUTION OF THE UNITKD STATES. 

general welfare of the United States, it will amount to a, 
serious obstacle in the exercise of the taxing power of 
congress, and may interfere with providing for the public 
defense. 

Power to Borrow Money and to Coin Money — State Pro- 
hibited from Coining Money. 

Article I, Sec. 8. " Congress shall have power — " 

Par. 2. "To borrow money on the credit of the 
United States." 

Par. 5. "To coin money, regulate the value thereof, 
and of foreign coin, and fix the standard of weights and 
measures. ' ' 

Sec. 10, Par. 1. " No state shall . . . coin money ; 
emit bills of credit ; make any thing but gold and silver 
coin a tender in payment of debts ; pass any bill of at- 
tainder, ex post facto law, or law impairing the obliga- 
tion of contracts ; or grant any title of nobility. ' ' 

These three provisions relate to each other, and consti- 
tute part of the same objects provided for by the constitu- 
tion, and should be considered together as one subject. 
The money authorized to be borrowed by the congress, 
was intended to be current and final redemption money, 
without a guarantee from the United States, or any other 
government, or any bank or company to redeem it. 

For should the United States obligate themselves to 
guarantee the redemption of the money so borrowed, 
every borrowing might include an obligation to pay twice 
for the same loan, in the event the maker of the money 
so borrowed should fail to redeem the same. 

Money had a known meaning at the time, and long be- 
fore the constitution was made, it was used long before 
the birth of Christ, and in all nations, it was understood 
to indicate that which had been agreed on to express 
values, a medium of exchange to pay debts on final 



TO I,AY AND COIXBCT TAXES, ETC. 1 43 

settlement, or as expressed by Abraham in the purchase 
of Machpelah, "current money with the merchant," as 
the only indorsement of it. 

The business world had agreed that gold and silver were 
the best metals of which to make money ; indeed, as far 
back as history reaches, gold and silver coin were both 
used as redemption money ; the coins, however, were not 
always stamped by government authority, nor by indi- 
vidual guarantee. 

Mr. Hallam, in his Middle Ages, gives an account of 
tampering with the coins, by the Jewish and Lombard 
usurers ; he says the coins, in some instances, were re- 
duced by them, to one-half weight, which caused great 
distress in France ; but as prices went up on the clipped 
coin, in England, that nation was benefited by it for a 
short while ;* but they soon grew into disfavor, and a 
company of German traders, who used the coins of a 
higher grade, both of gold and silver, the stamp value of 
which, both as to the fineness and weight, were entirely 
satisfactory to the English people. As those traders 
came from the east of England, they were called Easter- 
lings, and their coins were also called easterlings, and 
then abbreviated into sterlings ; those coins were esteemed 
so highly by the English people that the parliament by 
act of Edward III, ch. 13, adopted that system of coin- 
age for that kingdom, both as to the gold and silver 
coins ; however, the English shilling was retained as a 
unit of values, f 

Without a legislative act fixing the weight and fine- 
ness of coins, and making them a tender in payment of 
debts, by force of law, their value will be regulated by 
common consent, and that consent is not likely to be 



* Hallam's Middle Ages, pp. 483-486, 497-500. 
f Blackstone's Com., vol. 1, p. 278. 



144 CONSTITUTION OF THE UNITED STATES. 

given unless the coins contain sufficient precious 
metals to make them approximate their coin or stamp 
value. And, as the coins of all redemption money must 
be taken together, to arrive at their relative value as 
money, to the commodities they represent, and also the 
commercial ratio between the metals of which they are 
made must be considered, in ascertaining the quantity 
of metal to be put into the coins of each ; it must re- 
main difficult to determine what shall constitute the sign 
by which to express values, particularly as the precious 
metals themselves fluctuate in value. 

Mr. Blackstone says: "As the quantity of precious 
metals increases, that is, the more of them there is ex- 
tracted from the mines, this universal medium or common 
sign will sink in value and grow less precious. Above a 
thousand millions of bullion are calculated to have been 
imported into Europe from America within less than 
three centuries ; and the quantity is daily increasing. 
The consequence is that more money must be given now 
for the same commodity than was given an hundred 
years ago. And, if any accident were to diminish the 
quantity of gold and silver, their value would propor- 
tionately rise. A horse that was formerly worth ten 
pounds is now perhaps worth twenty, and, by any failure 
of current specie, the price may be reduced to what it 
was. ' ' * 

This fluctuation in the value of the precious metals 
must be estimated by combining the value of both, to 
get at their true value or relation to the commodities they 
are to be used to give expression to the value of. For, 
if the coins of both gold and silver be recognized as final 
redemption money, and the coins of only one of these 
metals be estimated in ascertaining the relation of the 



* Blackstone. vol. I, p. 276. 



TO LAY AND COLLECT TAXES, ETC. 1 45 

final redemption money to the commodities to be repre- 
sented by both, the value of the sign, or coins, would be 
too high, and the commodities measured by one only 
would be correspondingly too low, and the trading public 
would not agree to such expression of the value of their 
commodities. 

Consequently, the coin of both metals must be counted 
together, to indicate their relation to the commodities 
they are to express the value of. 

Coins, or specie, used as final redemption money, being- 
estimated partly by the commercial value of the precious 
metal in them, and partly by the uses they may be put 
to, as a measure of values, and exchange for all articles 
of trade, the precious metal put in them need not have 
a commercial value equal to the coin or stamp value to 
make them pass at their stamp value ; indeed, the value 
of the convenience of their use to express the price of 
all articles of commerce, and of being used in exchange 
of all articles of trade, constitute the principal value of 
the coins ; neither gold nor silver, as metals, deprived of 
being used as money, would sell for half as much as the 
bullion thereof will bring, as long as it may be con- 
verted into money of final redemption, for, whenever 
the use of either of them as materials of which to 
make money ceases, more than half of the demand for 
them will also cease, and the metal of each will neces- 
sarily sink to less than half of its present value, if not 
more. 

Whenever the coins become more or less numerous, 
the value of them will change in obedience to the laws of 
supply and demand ; however, as they have a fixed sign or 
index by which to express values stamped on them when 
coined, which can not be changed, the price of the arti- 
cles of commerce they are used to express the value of 
must change to comport with the changed value of the 



146 CONSTITUTION OF THE UNITED STATES. 

coin to be used as a sign or index thereof, so that when- 
ever the signs are scarce, commodities must go down, and 
whenever they are abundant, the prices of commerce 
must go up. 

And, if the specie of the country shall consist of 
two or more metals, the coins will be estimated by the 
ratio of the supply and demand of each metal of which 
they are made, unless the government making the 
coins shall coerce the people to take them, by making- 
them a legal tender, in which event it will become a 
matter of but little concern to the trading public what 
the value of the metal in them may be ; but, unless 
the coins be made a legal tender, they will not take 
them v unless the metal in them has a commercial value, 
approximately, equal to their coin value. 

However, as the law, making the coins a legal tender 
can not be made to operate any where except in the 
nation making them a legal- tender, it will be better for 
the people of the nation making its coins a legal-tender, 
that the value of the metal of which they are made 
should have a commercial value approximately equal to 
the stamp value. The precious metal in the coins of the 
United States has always had a commercial value equal 
to the coin value, except in the case of the silver coins 
under what is known as the Bland- Allison Act of 1878, 
and what is known as the Sherman Act of 1891. Under 
each of said acts, the silver coins, as well as the silver 
metal in them, was so hostilely decried against by the 
government of the United States, as to cause the price of 
the metal in the coins to sink below the coin value. 
And the mints, by those acts, being closed against the 
coinage of silver on individual account, and open only on 



TO I.AY AND COIXKCT TAXKS, ETC. 147 

account of the government of the United States, and, 
the coins being made legal tender in the payment of only 
such debts as should not otherwise be provided for by- 
contract ; the silver coins therefore fell in value. 

The prohibition against the coinage of silver on in- 
dividual account, and the government being limited in 
the quantity of silver it could coin, at once destroyed the 
market for a large part of the silver bullion, which neces- 
sarily reduced its commercial value. Moreover, the au- 
thority to destroy the legal tender feature of the silver 
coins by contract, while the gold coin was to remain a 
legal tender, so decries the silver coins themselves, as to 
make them form a lower grade of money than that which 
is represented by the gold coins ; and, therefore, estab- 
lishes two grades of money, the one based on gold coins, 
and the other on the decried silver coins ; to the great 
injury of the producing classes, and to the advantage of 
brokers and persons who deal in exchange and invest- 
ments in bonds. 

As silver coins are used in the small transactions, and 
in purchasing the daily subsistence of life, the people be- 
come more familiar with them than with gold coins ; and 
as nations usually begin their existence with a people of 
moderate means whose trade is small in amount, the first 
coins are usually made of silver, and then, as the people 
grow in wealth, they need gold. 

It is claimed that England in adopting the pound ster- 
ling, as its criterion of coinage both as to silver and gold 
in the same act of its parliament, constituted its unit of 
gold, but that is a mistake, for England had coined her 
shilling of silver long before tha act of its parliament, 
though the quantity of pure metal in the shilling and prob- 
ably the weight of it had been changed ; however, every 



148 CONSTITUTION OF THE UNITED STATES. 

coin authorized by that act (adopting the pound ster- 
ling), indirectly related to the English shilling, and its 
value measured by that shilling ; so that really no part 
of the easterling system of coinage was adopted by said 
act of parliament, except the quality thereof. 

By the act of congress of 1873 an attempt was made to 
establish a gold unit as follows : ' c The gold coins of the 
United States shall be a one dollar piece, which, at the 
standard weight of twenty-five and eight-tenth grains 
shall be the unit of value ; a quarter eagle, or two and a 
half dollar piece ; a three dollar piece ; a half eagle, or 
five dollar piece ; an eagle, or ten dollar piece ; and a 
double eagle, or twenty dollar piece. . . ."* 

Although the congress declares that the gold dollar 
shall be the unit of value, unless we accept the dollar 
as established by the second congress of the United 
States, the term dollar, as used in that act of congress, 
must be entirely without meaning, and the mention of 
the one dollar piece ; the three dollar piece ; the five 
dollar piece ; the ten dollar piece, and the twenty dollar 
piece, would all be so much jargon and entirely without 
meaning. 

But if the silver dollar, as established by the second 
congress, be recognized as the unit of value of the United 
States, the act of congress quoted from becomes perfectly 
plain and comprehensible. 

I do not question the authority of the congress to 
change the unit of value, and to establish such unit 
as may please the 'congress ; but, inasmuch as that 
unit is a sign by which to express value, it must be 
understood and agreed on by the trading people of 
the United States, and should bear such relation to 
the unit of values agreed on by the commercial na- 



* Revised Statutes U. S. 351 1. 



TO LAY AND COLLECT TAXES, ETC. 1 49 

tions with which the American people carry on trade, as 
to make it useful to the people ; it should also bear re- 
lation to the value of the commerce it is to be used to 
express the value of, otherwise it would not express the 
true value thereof, and would prove a serious obstacle in 
the way of carrying on commerce with foreign nations. 
Consequently, unless the congress shall take its new 
unit from some foreign nation, or from the existing 
unit of the United States, it will be compelled to 
look to the commerce of the world and the nations 
with which the people of the United States trade, and 
compare it with the money of those nations, or rather 
the facilities of those nations to acquire bullion, of which 
to make final redemption money, to ascertain a correct 
unit by which to express values. The congress without 
entering into this investigation attempted to make the 
unit of value of gold, as aforesaid, but, in fact, retained 
the unit as established by the second congress. 

The second congress declared that the money of ac- 
count shall be expressed in dollars as units; dimes, 
or tenths ; cents, or hundredths ; mills, or thousandths, 
in decimal proportion each to the other. That all gold 
coins should be eleven parts pure gold and one part of 
alloy, consisting of copper and silver, the proportion of 
silver not to exceed one-half of said alloy. And the 
proportion between pure gold and pure silver should be 
fifteen to one in value. And the dollar of the United 
States should be the same as the Spanish milled dollar, 
containing 371^ grains of pure silver, making the stand- 
ard silver in it 416 grains.* 

It will be observed that the second congress borrowed 
from Spain and adopted the unit of that nation, viz., the 
dollar. 



* 30 Iv. U. S. Second Congress, CC. 15-46. 



150 CONSTITUTION OF THE UNITED STATES. 

The power of congress to coin money does not neces- 
sarily include authority to make the coins thereof a 
tender in payment of debts, as is manifested from the 
custom in Europe, at the time the constitution was made, 
of granting that authority to bishops and others, which 
was never held to include authority to make the coins 
a legal tender ; and the coining of the precious metals 
had frequently been done by individuals without any 
grant of authority to do so by any government. How- 
ever, authority to regulate the value thereof, and of 
foreign coin, may with some plausibility be claimed to 
include authority to make the coins a legal tender ; but 
a careful examination of all of the provisions of the con- 
stitution relating to the subject will show that the 
authority to regulate the value thereof was not intended 
to grant power to make the coins a legal tender, and can 
not be so construed, unless we concede that the con- 
vention desired to vest the congress with authority to 
give to the coin a fiat value, as the power to make them 
legal tender can in nowise aid in regulating their value 
except by enabling the congress to force the people to 
take spurious coin in payment of debts ; therefore I as- 
sume for the present, but will present the proof later, 
that the states alone are vested with authority to make 
the coins of gold and silver tenders in payment of debts, 
and the only power the congress has is to coin and 
regulate the ratio between gold and silver and the size of 
the coins. Though congress may coin any metal to be 
used as currency, the coins thereof can not be made legal 
tender without the sanction of the legislatures of the 
several states ; and the states are prohibited from making 
any thing a tender in payment of debts except gold and 
silver coin. 

The whole country was disgusted with the paper 
money, whether it was continental money or that which 



TO LAY AND COLLECT TAXES, ETC. I5 1 

was issued by the respective states, and the delegates in 
the convention were impressed with the importance of 
establishing a stable and sound monetary system for the 
United States. But how to vest congress with power to 
make money and limit the exercise of that power so as to 
prevent it from following the example set by the conti- 
nental and confederate congresses, was a matter of serious 
concern among the delegates. 

Therefore, why not divide the power to make money 
between the congress and the states ? The objects of 
government were divided between the states, and the 
United States, by giving the union exclusive jurisdiction 
of that class of powers necessary to enable it to conduct 
the affairs thereof with foreign nations ; and to the several 
states exclusive jurisdiction of the domestic affairs and 
police powers thereof, and no amendment to the federal 
constitution could be made without the concurrence of two- 
thirds of each house of congress, and although concurred 
in by so large a vote of each house, such amendments could 
not become parts of the constitution until ratified by the 
legislatures of three-fourths of the states, or by conven- 
tions in three-fourths of the states ; or be proposed by a 
federal convention and ratified by three-fourths of the 
states. 

A stable and high grade of money being so earnestly 
desired by the convention, why should the monetary sys- 
tem not be guarded by dividing the power to make 
money between the states and congress ? 

The power to declare what shall be a tender in pay- 
ment of debts can not be practically exercised by both 
the congress and the states. For, suppose the great 
state of New York should declare the gold and silver 
coin of the United States to be equally legal tender, with- 
out regard to any contract against the silver coin, (which 
that state clearly has a right to do, by the plain letter of 



152 CONSTITUTION OF THE UNITED STATES. 

the constitution), any judgment in the courts of that 
state could be satisfied by the payment of either gold or 
or silver coin. But either party would have a right to 
appeal the case to the supreme court of the United 
States, to test the validity of the act of congress, in at- 
tempting to delegate its authority of deciding when, and 
in what character of cases, silver coin should be legal 
tender. If discretionary authority to declare gold and 
silver coin a tender in payment of debts is vested in con- 
gress, the congress alone must exercise that power, for 
congress can not delegate it to any other jurisdiction, not 
even to the people themselves.* 

Should the supreme court hold the act of congress 
valid, in all judgments in the courts of that state, the 
New York law would be sustained, and any judgment for 
money could be satisfied by a payment in either gold or 
silver coin. 

But in actions in the United States courts, held in that 
state, the New York law would be ignored and the debt 
would be required to be paid in gold. 

The authority to make gold and silver coin tenders in 
payment of debts, is expressly reserved to the states by 
the plain letter of the constitution. 

' c No state shall . . . coin money, emit bills of 
credit, make any thing but gold and silver coin a tender 
in payment of debts. ' ' 

But the congress is authorized, not only to coin money, 
but to regulate the value thereof, and of foreign coin. 
Though as has been shown, authorit}^ to coin money does 
not include authority to make the coins a legal tender. 
Neither does authority to regulate the value thereof in- 
clude authority to make the coins a legal tender. 

The value of the coins of every nation must be regu- 



* Cooley's Con. Iyim., Sixth Edition, p. 137. 



TO UY AND COIXECT TAXES, ETC. 1 53 

lated by law ; but as the coins of every nation constitute 
the money with which the national debts are to be paid, 
they ought to be good enough to pass current without the 
fiat of being made a legal tender by the nation. Still, a 
unit of value by which all values may be expressed is 
essentially necessary to enable the people to sell or ex- 
change their commodities, and every coin, whether frac- 
tional parts of that unit or multiples thereof, should refer 
to that unit, as is the case in the United States. The 
dollar being the unit, the fractions thereof do refer to it, 
as half dollars, quarter dollars, etc. So do the multiples 
refer to that unit, as the five-dollar gold coin, the ten- 
dollar gold coin, etc. Again, in fixing the size of the 
fractional parts of the unit and multiples thereof and the 
size of said unit, is but exercising authority ' ' to regulate 
the value thereof;" and by declaring the relation of 
foreign coins to that unit, is a regulation of the value of 
foreign coins. 

As authority to the manufacturer of coins to make 
them a legal tender includes authority to give them a fiat 
value, if the use of the words, "and to regulate the 
value thereof and of foreign coins" means to vest the 
congress with authority to make them a legal tender, the 
convention must have intended to give the congress un- 
limited control of making money, and authority to nullify 
that provision of the constitution reserving to the states 
authority to make gold and silver coins a tender in pay- 
ment of debts ; for, as has been shown, that authority 
can not be exercised by the congress and the states both 
at the same time. 

The congress having exclusive authority to manufact- 
ure the coins of the United States without limitation, 
and no limitation or restriction on the congress relating 
to making legal-tender money appearing any-where in 
the constitution, what will prevent the congress from 



154 CONSTITUTION OF THE UNITED STATES. 

splitting the coins half in two and making them legal 
tenders, and thereby reducing the public debt one-half 
and relieving the debtor class of one-half the difficulties 
of paying their obligations ? For there is no prohibition 
against the congress passing laws that will impair the ob- 
ligation of contracts. Or what is there to prevent the 
congress from increasing the amount of metal in the 
coins, and thereby doubling the obligations of the debtor 
class ? Or what will prevent the congress from declining 
to manufacture either or both of said metals into money, 
and making the promises to pay of the United States a 
legal tender, as was done with the treasury notes, com- 
monly known as greenbacks, during the civil war, which 
were paid out at par for army supplies, while they were 
not worth more than from thirty to fifty cents to the dol- 
lar, which amounted to taking private property without 
just compensation ? 

Some of the ablest statesmen that ever lived in the 
United States were in the convention that made the con- 
stitution, and they certainly foresaw all of these dangers, 
and knowing that the continental congress and the con- 
gress of the confederation had each shown themselves in- 
capable of managing so delicate a trust, they, therefore, 
could not have meant to vest the congress with such plenary 
powers by the use of the language ' ' to regulate the 
value" of the coins. 

As the states and the congress can not both exercise the 
power to declare the coins of gold and silver tenders in pay- 
ment of debts, the express reservation of that authority to 
the states was intended, in part, as a limitation on the pow- 
ers of the congress ; but mainly for the purpose of guaran- 
teeing to the people of the United States a specie, to con- 
sist of gold and silver coins alone, of full weight of pure 
metal, and the coins of each metal to be of equal value, 
and to constitute but one grade of money. The congress 



TO LAY AND COLLECT TAXES, ETC. 1 55 

having exclusive authority to coin money, and the states 
exclusive authority to determine whether they shall 
constitute tenders in payment of debts, and the states 
being prohibited from making any law that will impair 
the obligation of contracts, no changes that will impair 
the obligation of contracts could be made in the coins of 
the United States. Under this view, the congress would 
not be likely to attempt to make any such changes in the 
coins, particularly as they would become a dead expense 
on the United States ; unless the states could accept 
them and make them tenders in payment of debts, which 
the states could not do, if they were changed sufficiently 
to impair the obligation of contracts. 

As the states would not be likely to agree on coins, un- 
less they were of full weight of pure metal (and no one 
state could afford to accept coins as tenders in payment 
of debts that were refused by the other states) , and the 
states being prohibited from passing laws that will impair 
the obligation of contracts, not only a high grade, but 
the most stable monetary system of any nation, was se- 
cured by the constitution. 

The specie must consist of both gold and silver coins, 
the silver for small and gold for large transactions ; 
the gold can not be used for subsidiary coin, for but 
few persons could see or feel a five cent gold piece, 
particularly those who labor. The gold dollar can not be 
easily handled by but few persons ; and coins smaller 
than a dollar are absolutely needed to get the daily 
necessities of living ; therefore, the silver is absolutely 
necessary for one class of business, and the gold 
is necessary for another and different class of busi- 
ness. 

The value of the coins of each metal ought to be equal, 
and to pass current at their stamp value in the payment of 



156 CONSTITUTION OF THE UNITED STATES. 

debts, and in exchange for all commodities on exact 
equality. 

There is, however, a strong party in the United 
States that advocates what they call ' ' the single gold 
standard." A single gold standard is an utter im- 
possibility ; no nation ever had, and no nation can, 
confine itself to a single gold standard of values, because 
gold can not be used for making subsidiary coins of ; 
therefore some other metal must be used for that pur- 
pose. As the subsidiary coins are used to provide 
the daily necessities of life, the people are made more 
familiar with them, and their value ; they will, there- 
fore, measure the values of all things by the unit of 
that coin, and every wise government will give to its 
subsidiary coin a fixed value, by prescribing its unit of 
values in the metal of which its small coins are made, 
for all values are relative and fluctuate ; even the 
precious metals fluctuate in value, and, as before shown, 
the coin, or specie, fluctuates in value, in obedience to 
the supply and demand. Whenever a nation uses the 
more precious metal to prescribe its unit of values in, 
that act of itself decries the value of the less precious 
money metal ; for no nation can get its citizens to* 
consider what is called a gold standard of values unless 
it decries the coins made of its less precious metal ; 
and as the people can not surrender the subsidiary 
coin, to express the value of the things they are bound 
to buy for their daily living, the gold standard neces- 
sarily results in another standard, without destroying 
the unit recognized in the subsidiary coin, consequently 
that attempt must result in establishing two standards, 
which two standards will fluctuate in value according to 
the supply and demand of the coins of each metal. 

A discussion of the evils of two grades, or standards, 



TO LAY AND COLLECT TAXES, ETC. 1 57 

of money, more properly belongs to economics than 
to the powers granted by the constitution. However, it 
may not be out of place, to call attention to the fact 
that just at this time bonds made payable in gold sell 
more readily than bonds made payable in American 
coin ; it should be borne in mind that, if the con- 
gress is authorized to declare what shall be a tender in 
payment of debts, there is no limit on that power, and 
the congress may make a bond contracted to be paid in 
gold payable in paper alone, but if authority to declare 
what shall be a tender in payment of debts is vested 
exclusively in the states, they can never make any 
thing a tender in payment of such bonds except gold 
and silver coins ; but the states must make the gold 
and silver coins equally tenders in payment of debts. 
Attention should be directed to the further fact, that, 
as long as this country attempts to maintain two or 
more grades of legal- tender money, American exchange 
will necessarily take rank with the lowest grade of legal- 
tender money, because of the natural inclination of man- 
kind to pay debts in the cheapest money authorized by 
law. It should also be mentioned that, as long as this 
country attempts to maintain two or more grades of 
legal- tender money, it will be inpossible to maintain a 
merchant marine, because there will be no money with 
which to pay the sailors, to make their wages, on Amer- 
ican ships, equal to the wages they get on ships conducted 
under foreign flags. It is against human nature to pay 
a debt in the highest grade of money that the law author- 
izes to be paid in the lowest grade ; but if ship owners 
could be found who would pay their sailors in the high- 
est grade of money, the smallest piece of gold money 
men accustomed to climb ropes can conveniently han- 
dle is the two and a half dollar gold piece, American 



158 CONSTITUTION OF THE UNITED STATES. 

ship owners are obliged to follow the custom of letting a 
part of the crew off of duty in each port they may en- 
ter, and whenever sailors go ashore they want to spend 
money, so that, unless they buy two and a half dollars' 
worth, they will be compelled to take the subsidiary coin 
of the port in change, which is not likely to be worth its 
coin, or stamp, value in any other port ; therefore the 
sailors will be losers whether they are paid in gold or 
silver coin of the United States. Hence, although the 
merchant ships may offer and agree to pay their sailors 
as much as they are to get on ships of other countries, 
the character of the money they are to be paid in reduces 
their wages below the wages paid on foreign ships. 

In support of this theory, at the beginning of the late 
civil war the merchant marine of the United States was 
second only to that of England, and now it is inferior to 
that of five or six nations, although it is claimed that the 
United States furnishes about one- fourth of the commerce 
of the world. 

It is also claimed that the United States is more richly 
endowed with silver deposits than any other nation in 
the world. 

The demonetization of silver and destroying its equal 
legal- tender value with gold not only destroys the immense 
wealth this country ought to derive from carrying the 
commerce of the United States, but destroys one-half cf 
the value of the silver ores so bountifully deposited in 
the mountains of this country. 

The destruction of these two valuable sources of wealth 
without cause, or at least without a reasonable cause, con- 
clusively shows the inability of the congress to manage so 
delicate and important an interest as that of regulating the 
money of the United States, and the wisdom of the consti- 
tution makers in dividing the authority to make final. 



TO LAY AND COLLECT TAXES, ETC. 1 59 

redemption money between the congress and the state 
legislatures. 

The claim that the United States can not maintain its 
silver coins on a par with its gold coins is without 
foundation or common reason ; for that which gives 
specie its money value is the uses it may be put to, 
and if it is true that the United States furnishes one- 
fourth of the commerce of the world, by giving her 
coins of each metal equal sanction under the law, all 
coins so sanctioned could be maintained at par, and be 
gladly received in every country using articles exported 
from the United States. 

Article I. 

Sec. 8, Par. 3. "To regulate commerce with foreign 
nations, and among the several states, and with the In- 
dian tribes." 

Sec. 9, Par. 6. " No preference shall be given by any 
regulation of commerce or revenue to the ports of one 
state over those of another ; . . . " 

Article IV. 

Sec. 2, Par. 1. " The citizens of each state shall be en- 
titled to all the privileges and immunities of citizens in 
the several states." 

Par. 2. "A person charged in any state with treason, 
felony or other crime, who shall flee from justice and be 
found in another state, shall on demand of the executive 
authority of the state from which he fled, be delivered 
up, to be removed to the state having jurisdiction of the 
crime. ' ' 



l6o CONSTITUTION OF THE UNITED STATES. 

These four provisions relate to the subject of com- 
merce among the states and should be considered to- 
gether, to reach a clear understanding of the extent of 
the power of congress on the subject. 

"Among the states" was held by the supreme court of 
the United States, in the Gibbon- Ogden case,* to mean, 
1 ' within the states ; ' ' indeed it is difficult to see how it 
can be construed otherwise. That was a case involving 
the validity of an act of the legislature of the state of 
Xew York, granting to two persons exclusive authority 
to navigate all the waters in that state, that were navi- 
gable by steam, for the period of ten years. This act of 
the New York legislature was clearly against the act of 
congress regulating domestic navigation, and therefore 
unconstitutional, and the decision was right, but it was 
not based on that ground. 

While some of the navigable waters, by steam, of that 
state may have extended into other states, that feature 
was not discussed by the court in its opinion in the case, 
but the court held that the navigable waters b}- steam of 
that state, constituted channels of commerce, and not- 
withstanding the fact that some of the waters included 
in the grant were navigable by steam only within the 
state of Xew York, and the commerce to be carried on 
them must be taken on, and discharged, within the state ; 
still the court construing the phraseology ( ' among the 
states," to mean "within the state," held that as the 
navigable waters by steam, although entirely vrithin the 
state of Xew York, constituted channels of commerce 
over which congress had control, and that the act of the 
Xew York legislature could not defeat the congress in 
its authority to regulate commerce, therefore the act of 



* Reported in 9th Vvheaton, p. 1. 



TO LAY AND COLLECT TAXES, ETC. l6l 

the state legislature was void. This is held to be a 
leading case on the subject, and it has been uniformly 
adhered to, to the extent that congress has jurisdiction 
of commerce between the states, and over the means of 
carrying commerce. So that a discussion of these ques- 
tions will cover all that has been decided on the subject 
by the supreme court. 

While I concur with that part of the decision that 
interprets the phrase ' ' among the states ' ' to mean 
" within the states," I can not understand how the 
court could construe " among the states " also, to mean, 
' ' between the states ; ' ' nor can I concur with the 
court in holding that authority to regulate commerce 
includes authority to regulate the means of carrying 
commerce. 

I will discuss these questions in the order they are here 
named. 

In arguing the case, the court refers to no authorities 
(probably because the counsel cited none) , but among other 
things, that court said : "The subject to be regulated is 
commerce, and our constitution being, as was aptly said 
at the bar, one of enumeration, and not of definition, to 
ascertain the extent of the power, it becomes necessary 
to settle the meaning of the word. 

' ' The counsel for appellee would limit it to traffic, to 
buying and selling, of the interchange of commodities, 
and do not admit that it comprehends navigation. 

1 ' This would restrict a general term applicable to 
many objects, to one of its significations. 

" Commerce undoubtedly is traffic, but it is something 
more ; it is intercourse. It describes the commercial in- 
tercourse between nations, and ports of nations in all of 
its branches, and is regulated by prescribing rules for 
carrying on that intercourse. 

' ' The mind can scarcely conceive a system for regulating 



1 62 CONSTITUTION OF THE UNITED STATES. 

commerce between nations, which shall exclude all laws- 
concerning navigation, which shall be silent on the ad- 
mission of the vessels of the one nation into the ports of 
the others, and be confined to prescribing rules for the 
condnct of individuals in the actual employment of buy- 
ing and selling, or of barter. 

"All America understood the word commerce to com- 
prehend navigation. It was so understood, and must 
have been so understood when the constitution was 
framed. ' ' 

It is not the word commerce that is to be interpreted, 
to fully understand the extent of the powers of congress 
over commerce in the states ; what the phrase "among the 
states ' ' means is of the highest importance, for it is upon 
that phrase that the whole question turns. If that shall 
be interpreted as the makers of the constitution evidently 
intended it to be understood and interpreted, the con- 
gress has no power over commerce between the states. 
Commerce and intercourse between the states is unaltera- 
bly provided for by the constitution itself as the very es- 
sence of the compact of the union. It is provided that 
1 ' the citizens of each state shall be entitled to all of the 
privileges and immunities of citizens in the several states. ' ' 
Privileges and immunities, as has been said, include the 
right of going into any state in the union and buying, own- 
ing, selling and conveying any thing therein that is recog- 
nized as property in the state ; to transmit the same by will, 
deed, or descent and distribution, according to the laws 
of the state ; to attend all lawful meetings and to freely 
enter into any discussion on any lawful subject, whether 
it relates to religion, politics or science, or any law of 
physics or morals ; to import, export, raise or manufac- 
ture any article of trade, and to use every railroad, canal, 
river, turnpike, plank-road, dirt-road, or bridle-path over 
the mountains, on the same terms and conditions the 



TO LAY AND COIXECT TAXES, KTC. 1 63 

citizens thereof are subjected to, no more and no less. 
It is impossible to prescribe any rules for the reg- 
ulation of commerce between the states, without in 
some way interfering with these provisions of the con- 
stitution. 

Congress never passed any act to regulate commerce 
between the states, except between rebelling states or 
parts thereof, and states adhering to the union during 
the late civil war, and to regulate steamboats navigating 
rivers that pass along or through several states ; indeed, 
it is utterly impossible to pass an act to regulate trade 
between the citizens of the several states, without its re- 
straining the states from extending equal privileges and 
immunities to the citizens of all the states ; or to pass 
an act regulating the carrying of commerce on rail- 
roads, canals, turnpikes, plank-roads, dirt-roads or 
mountain paths, without interfering with the ability 
of the states to extend to the citizens of all of the states 
equal privileges and immunities. The extending equal 
privileges and immunities to the citizens of all the states 
by every state ; the giving full faith and credit to the 
public acts, records, and judicial proceedings of each 
state in every other state ; the capturing of one guilty of 
crime committed in a state, who flees to another state, by 
the authorities of the state where he may be found, to be 
taken to the state having jurisdiction of the act to be 
tried ; and the feeling of security established by uniting 
the forces of all of the states to make common defense, 
constitutes the cohesive principles of the union, and with- 
out any one of these provisions the cohesion of the 
union would be greatly weakened, and without any of 
them the states, having no common interest, would likely 
drift apart and let the union go to pieces. 

As these provisions are necessary to hold the union to- 



164 CONSTITUTION OF THE UNITED STATES. 

gether, any interference that tends to destroy or weaken 
them, or either of them, must constitute acts hostile to 
the union, let it come from whatever source it may. 

The authority to regulate steamboats on navigable 
waters arises out of an entirely different class of powers ; 
navigable rivers are public highways, and it is the duty 
of the congress to keep them open for the use of all of the 
states, and by the terms of the cession of the surplus 
territory by the several states it was made the duty of 
congress to keep the Ohio and St. Lawrence rivers and 
their tributaries open for the use of all of the states. 
In addition to this source of authority, the congress is 
authorized to regulate domestic navigation among and 
between the states. 

The federal judiciary has assumed jurisdiction of not 
only commerce between the states, but to regulate the 
means constructed by the several states for carrying 
commerce out of their borders to a seaboard town situate 
in another state, for exportation ; but the courts have 
not as yet succeeded in arriving at an exact and uniform 
rule for regulating the same, and it is doubtful whether 
an exact and uniform rule can be discovered to regulate 
the means of carrying commerce between states without 
coming in collision with the fouJth article of the con- 
stitution, and the right of the states to manage their 
police affairs. 

At the time the constitution was being made the insti- 
tution of slavery was a question of serious concern with 
the delegates in the convention ; and to interpret the 
language ' ( among the several states ' ' to mean ' ( between 
the several states," would have necessarily authorized 
congress to regulate commerce in slave property between 
the states, and carrying slaves from one state to another, 



TO UY AND COIvIvKCT TAXES, ETC. 165 

and have destroyed the right of any state to regulate that 
institution within its borders. 

The regulation of the liquor trade between states, and 
the carrying of the same from one state to another, must 
also be within the jurisdiction of congress, if the term 
' ' among the several states ' ' be construed to mean 
1 ' between the states. ' ' 

If the reader will call to mind the facts that the United 
States had no citizens except the citizens of the several 
states, and, unless congress could bind the citizens of 
the several states to its commercial treaties with foreign 
nations, no foreign nation would make such a treaty with 
the congress of the United States. That there is no au- 
thority given to congress to bind the people of the re- 
spective states to commercial treaties by the letter of the 
constitution, unless this paragraph authorizing congress to 
regulate commerce with foreign nations and among- the 
several states, and with the Indian tribes, gives that au- 
thority. 

That the word among does not mean between, though 
by adding qualifying words, it may be made to mean be- 
tween, as in the case of a devise directing decedent's 
estate to be equally divided among his children ; but 
there are no qualifying words, or word, in connection 
with its use in this paragraph, to give it any other than 
its own meaning (viz.), "amidst, within." 

And that the imperative necessity of authorizing con- 
gress to bind the people of the several states to its regu- 
lation of commerce with foreign nations and with the In- 
dian tribes, together with the absolute certainty that it 
was never intended to vest congress with authority to 
regulate the sale of slaves by citizens of one state to 
citizens of another state, or the transfer of slaves from 
one state to another ; conclusively shows that the sole 
object and function of the power of congress to regulate 



1 66 CONSTITUTION OF THE UNITED STATES. 

commerce among the several states was intended to give, 
and does give, the regulation of foreign commerce by the 
congress force and effect within the states, and was never 
intended to, and does not, give congress any authority to 
regulate commerce, or the means of carrying the same, 
between the states. ' 

However, should the congress find some mode by which 
it may regulate commerce between the states without con- 
flicting with the second section of article four of the 
constitution, still it has no constitutional authority to in- 
terfere with the means of carrying commerce. It is true, 
without the means of transportation, commerce could 
not be carried on. Nor could it be carried on without 
the factories and farms to produce it, and it may as 
reasonably be claimed that authority to regulate com- 
merce includes authority to regulate the factories and 
farms, as to claim that it includes the tramway from a 
factory to a railroad depot, or a turnpike, railroad, canal 
or any other means constructed by any state for carrying 
commerce. 

Commerce proper, at the time the constitution was 
formed and adopted in 1787, was regulated by the law 
merchant, a species of international law which was be- 
yond the control of the municipal authority, and it could 
not be changed by any one nation alone, however anxious 
it might be to do so. The high seas being free to all, 
the navigation thereof was to a limited extent also regu- 
lated by international laws, though the main features of 
navigation were subject to the control of municipal laws. 
Ships engaged in the carrying of commerce, whether on 
the high seas or on inland waters, were regulated by the 
municipal law of the nations to which they belonged ; 
neither ships, canals, inland rivers, nor roads as means of 
carrying commerce, were ever regulated by the law 



TO LAY AND COLLECT TAXES, ETC. 1 67 

merchant, but, on the contrary, they were always con- 
trolled by municipal authority. 

Since commerce and navigation were regulated not only 
by different codes of laws, but by different authorities, 
they could not be considered as parts of each other. 

Mr. Blackstone, in speaking of commerce, says : " No 
municipal laws can be sufficient to order and determine 
the very extensive and complicated affairs of traffic and 
merchandise ; neither can they have a proper authority 
for this purpose. For as these are transactions carried on 
between subjects of independent states, the municipal 
laws of one will not be regarded by the other. For 
which reason the affairs of commerce are regulated by a 
law of their own, called the law merchant, or lex mercato- 
ria, which all nations agree in, and take notice of." * 

This is accepted by Mr. Jacob and quoted at length in 
his law dictionary, f 

Every civilized nation must have a commerce, for the 
value of personal property depends on the right to dis- 
pose of it, and every industry requires the individual 
right to dispose of surplus production ; without this right 
no one would produce. As nations occupy different de- 
grees of latitude and produce different articles of com- 
merce, the citizens of each must be enabled to exchange the 
surplus they produce, or they will seek some nation to live 
in that will provide them with that convenience ; hence, 
a well-regulated commerce is essential to every nation. 

But while every nation is bound to have a commerce, 
and internal convenience to get that commerce to its 
ports of entry for exchange, yet every nation is not 
bound to have ships, for the ships of one may carry the 
commerce of many nations. Every ship requires the 



* Blackstone, vol. 1, p. 273, sec. 5. 

f Jacob's Law Diet., Commerce, Ships, etc. 



1 68 CONSTITUTION OF THE UNITED STATES. 

protection of some nation, not only against free-booters, 
and pirates at sea, but to protect them in their rights in 
the ports of foreign nations ; for this reason merchant 
ships usually take their charter from a nation able to give 
them that protection, and they will float and do business 
under the flag of that nation ; and for the protection it 
gets, it will owe allegiance to that nation, and will be 
subject to its control, and may be called on in time of 
war to do military duty. 

The relation between a nation, and the ships that be- 
long to it (which includes all ships that float under its 
flag) , is such that the ship is deemed a part of the terri- 
tory of the nation whose flag it floats, and this theory is 
carried so far as to hold infants born on board of a ship 
to have been born within the nation to which the ship 
belongs ; however, if the birth does not take place until 
the ship reaches the home port of the mother, the child 
will be deemed to have been born within the nation of 
which its mother is a citizen. * 

Although the navigation of the high seas is regulated 
by international laws, every ship will be under the con- 
trol of the nation to which it belongs, and regulated by 
the municipal laws thereof, still, whenever it enters the 
port of any other nation, it must yield submission to its 
municipal regulations. But as soon as it leaves that 
port and straightens out in the high seas, the municipal 
authority of its own nation envelops it, and proceeds 
to control and regulate its business as a carrier of com- 
merce, as far as it can do so without interfering with 
international law. . 

Long before the separation of the American states 
from England, that nation had its navigation laws.f All 



* Vatt ell's L,aw of Nations, book i, chap. 19, sec. 216. 
t Jacob's Law Diet., Navigation. 



TO LAY AND COU.KCT TAXES, ETC. 1 69 

questions of navigation were settled according to these 
laws, instead of international law, by the English courts. 
Still commerce proper was regulated by the law mer- 
chant, and all judicial controversies were determined and 
settled by the rules of the law merchant, ' ' which all na- 
tions agree in, and take notice of ; " as said by Mr. 
Blackstone. 

If authority to regulate commerce among the states in- 
cludes authority to regulate the means of carrying com- 
merce, it must include every means of transportation, 
and must take into its grasp not only the rivers that lie 
entirely within a single state, but the canals, railroads, 
turnpikes and all dirt roads within the state. Though 
the supreme court has never gone so far in any case that 
I am aware of ; however, no distinction can be drawn in 
principle between a river lying entirely within a state 
and a mountain path lying entirely within a state ; con- 
sequently, the position taken by the judiciary will neces- 
sarily lead to transferring the control of every public 
thoroughfare in every state of the Union to the congress 
of the United States, although there is no authority in 
the congress to tax the people of one state to construct 
railroads, canals, turnpike or dirt roads in any other 
state, or to tax any other state to construct any of said 
improvements therein, or to compel any state to construct 
them. 

It is conceded by all that any state may construct 
canals, railroads, turnpikes, dirt roads and bridges 
within its territorial borders without let or hindrance 
by congress ; but if congress is authorized to regulate 
such improvements because they may be designed to be 
used as channels of commerce, the congress may pre- 
vent any state from constructing any such improve- 
ments at any time ; yet the congress has no authority to 
compel any state to construct improvements of any 



170 CONSTITUTION OF THE UNITED STATES. 

character whatever and has no authority to spend the 
money belonging to the United States for any such pur- 
pose, except in the construction of post-roads which have 
no connection with the convenience of travel or hauling 
commerce for the people. 

The supreme court further said in said Gibbon- Ogden 
case : 

"As preliminary to the very able discussion of the 
constitution which we have heard from the bar, and as 
having some influence on its construction, reference has 
been made to the political situation of these states 
anterior to the formation of the constitution. 

' ' It has been said that they were sovereign, were com- 
pletely independent and were connected with each other 
by a league. 

( ' This is true. But when those allied sovereigns con- 
verted their league into a government, when they con- 
verted their congress of ambassadors, deputed to deliberate 
on their common concerns, and to recommend measures 
of general utility, into a legislature, empowered to enact 
laws on the most interesting subjects, the whole charac- 
ter in which the states appear underwent a change, the 
extent of which must be determined by a fair considera- 
tion of the instrument by which that change was effected. 

1 ' This instrument contains an enumeration of powers 
expressly granted by the people to their government. 
It has been said that these powers ought to be construed 
strictly. 

' c But why ought they to be so construed ? Is there one 
sentence in the constitution which gives countenance to 
this rule ? In the last of the enumerated powers, that 
which grants expressly the means for carrying all others 
into execution, congress is authorized to make all laws 
which shall be necessary and proper for the purpose. 
But this limitation on the means which may be used, is 



TO LAY AND COUvECT TAXKS, KTC. 171 

not extended to the powers which are conferred ; nor is 
there one sentence in the constitution which has been 
pointed out by the gentlemen of the bar, or which we 
have been able to discover that prescribes this rule. We 
do not, therefore, think ourselves justified in adopt- 
ing it." 

The tenth amendment to the constitution, which was 
proposed by the first congress that was elected after the 
adoption of the constitution, provides as follows ; 

' ' The powers not delegated to the United States, by 
the constitution, nor prohibited by it to the states, are 
reserved to the states respectively, or to the people." 

The constitution being inanimate, it can speak only by 
its letter. Therefore all powers not delegated by the 
letter of the constitution to the United States, or pro- 
hibited by the letter thereof, to the states, are expressly 
reserved to the states respectively, or to the people. Sup- 
pose A. owned a thousand-acre tract of land, and he should 
sell to B. five hundred acres of it by metes and bounds, 
and it should turn out that the survey of land con- 
tained fifteen hundred acres instead of only a thousand 
acres. A. would undoubtedly be entitled to the whole 
surplus in the land whether he reserved to himself all 
over and above the five hundred acres he sold to B. or 
not. Now, the constitution, not only delegates to the 
United States specifically enumerated powers, but ex- 
pressly reserves all powers not specifically granted to the 
United States, to the states respectively, or to the people ; 
hence, no power can be rightfully accorded to the United 
States unless it can be found in the letter of the constitu- 
tion, or may be fairly inferred as a part of a power 
plainly granted by the letter thereof, which rule requires 
a strict construction to be complied with. 

But that court claims the vesting of congress with au- 
thority to enact laws had the effect of converting the 



172 CONSTITUTION OF THE UNITED STATES. 

United States into a sovereign nation. That is equally 
untenable, for it is not claimed that the congress can go 
outside of its authority under the constitution to make 
laws. 

It is shown in Chapter III that power to make laws 
under the limitations of a charter can not have the effect 
of vesting the corporation with sovereignty, and the con- 
stitution of the United States imposes as rigorous restric- 
tions on the making of laws as were imposed by the 
colonial charters or by the charter of any city ; conse- 
quently authority to make laws under the limited au- 
thority of the constitution could not of itself alone have 
given the United States a sovereign government. 

However, whether the United States is a sovereign na- 
tion, or simply a corporate agent of the people, the con- 
gress thereof has, under its authority to regulate com- 
merce, the right to control foreign ships, while they are 
in the ports of any state within the union, engaged in 
carrying commerce to or from the United States, and 
may determine what nation or nations of people the citi- 
zens of the United States may trade with, and pre- 
scribe the terms and conditions on which that trade 
and traffic may be carried on. The congress may also 
designate the articles of commerce that may be im- 
ported or exported, as shown by the embargo acts of 
1 798-1 800 and 1808. And may regulate American ships 
and shipping. 

Furthermore, as before said, if the congress is author- 
ized to regulate any one of the railroads, canals, turn- 
pikes or dirt-roads constructed by state authority, it 
must necessarily have control of all of them, and thus 
the whole police power of the state was transferred to the 
congress of the United States by said provision, without 
reference to the police powers of the states. 

Justice Miller, of the Supreme Court of the United 



TO LAY AND COLLECT TAXES, ETC. 1 73 

States, in discussing this phase of the question in the 
case of the Wabash, St. Louis and Pacific Railway Co. v. 
The State of Illinois, said that there is a class of cases 
that the states have exclusive jurisdiction of, but he fails 
to point them out, and I doubt if he could have done so, 
as learned and able a jurist as he was, for there is no dis- 
cernible boundary line between jurisdiction of the con- 
gress and that of the state, if the congress has control of 
any of the means of carrying commerce, which are located 
entirely in any one state, whether there by the laws of 
nature, or put there by the state for the convenience of 
its own citizens and those of its sister states. 

Consequently, every effort on the part of congress to 
interfere with any means of carrying commerce is the 
exercise of ungranted powers and a stigma upon the 
union itself, and seriously interferes with the states mak- 
ing other and valuable improvements, as the states will 
stop making improvements unless they are allowed to 
control them by state laws. 



174 CONSTITUTION OF THE UNITED STATES. 



CHAPTER VI. 

GRANT OF POLITICAL POWERS — PROHIBITION OF POWERS 
TO THE STATES AND TO CONGRESS. 



Articee I. 
Section 8. 

Par. 4. "To establish a uniform rule of naturaliza- 
tion, and uniform laws on the subject of bankruptcies 
throughout the United States. ' ' 

The United States having been formed for white races 
of people only,* and the compact of the union binding 
each state to extend to the citizens of every other state 
equal privileges and immunities with its own citizens, 
being agreed to, prevents any dark races of people from 
being admitted as citizens ; exclusive authority to es- 
tablish naturalization laws should have been vested in 
the congress, for privileges and immunities includes the 
right of marriage and transmitting property by in- 
heritance, as well as by bargain and sale, so that if the 
States were authorized to enact separate laws of nat- 
uralization, and also authorized to pass its own laws 
relating to marriages, and some of the states should 
make it lawful for the whites and blacks to inter- 
marry, and other states should prohibit such marriages, 
and some of the states should naturalize the dark race, 
and other states should refuse to make the dark race 
citizens, the law of descent and distribution would 
necessarily become so entangled as to render it im- 
possible to dispose of the rights of the parties. But by 



Dred Scott case. 



GRANT OF POLITICAL POWERS, ETC. 1 75 

vesting the congress with the exclusive right to pass nat- 
uralization laws, the congress must adhere to the consti- 
tution, and extend the privilege of naturalization to the 
white races of people only, so that although any state 
might extend authority to marriages between the white 
and black races, it could extend no further than that 
state and would not be entitled to consideration in the 
other states, under the provision of the constitution re- 
quiring each state to extend equal privileges to the citi- 
zens of each of the other states. 

Any state may extend to persons of African descent, 
or to emigrants of the white race, the right to vote before 
they shall have been in the United States long enough to 
be naturalized under the laws of congress. 

The privilege of voting in a state for members of ( ' the 
most numerous branch of the legislature," will entitle 
them to vote for members of congress and presidential 
electors. * 

But the right to vote will not of itself make them citi- 
zens, or entitle them to equal privileges and immunities 
in the several states. 

The extent of protection due by the United States to 
naturalized citizens, and to those who have taken the 
first step towards becoming naturalized, without being in 
this country long enough to take the final oath, has been 
rendered somewhat doubtful by treaty alliances. 

The English act of 1870 provides for the naturaliza- 
tion of aliens after five years residence and application 
to the secretary of state, and also that any British subject 
who shall voluntarily become naturalized in any foreign 
country, shall after five years' residence be regarded as 
alien and no longer a British subject. A treaty was en- 
tered into the same year between Great Britian and this 



* Art. 1, sec. 2, Con. 



176 CONSTITUTION OF THK UNITED STATES. 

country providing that aliens, who have complied with 
the conditions of admission and have been fully natural- 
ized, should be recognized as such by the country of his 
birth ; but the original allegiance may be recovered by 
much the same process. Treaties were also made by the 
United States in 1868 with Prussia, Bavaria, the Grand 
Duchy of Baden, Wurtenburg, Grand Duchey of Hess, 
Belgium and Mexico ; in 1869 with Sweden and Norway ; 
in 1870 with the Austro-Hungarian empire, and in 1872 
with Ecuador and Denmark. These treaties have the 
same general stipulations, stating a period of residence, 
usually five years, after which naturalization is permissi- 
ble and to be recognized, reserving to the country of 
original allegiance the right to punish for crimes com- 
mitted, or to compel the execution of obligations entered 
into before the change of domicil, and entering into 
mutual obligation to recognize the rights of each other. 
The question on which is the greatest likelihood of 
disagreement under existing laws, arises where an alien 
comes to this country and becomes duly naturalized and 
then returns. Is he then liable to undergo military 
sendee or otherwise recognize allegiance to the state of 
his birth? Some European nations hold that such a 
transaction on its face is evidence of an intention to 
escape natural obligations, but the policy of our gov- 
ernment has always been to protect its adopted citizens 
where the naturalization is not tainted with fraud.* 

The right of expatriation lies at the foundation of the 
American system, and the United States can not afford to 
surrender that right. 

The inhabitants of the colonies were British subjects 
at the time they severed the tie that bound them to that 



* International Cyclopedia, vol. 10, p. 339. 



GRANT OF POLITICAL POWERS, ETC. 177 

kingdom, and constructed charters thereof emanating 
from themselves. 

To have admitted, as may be claimed by reason of the 
treaties referred to, and as contended by most of the Euro- 
pean nations, that the consent of one's native country is 
necessary to authorize him to sever his allegiance to it, and 
to be lawfully naturalized in any other country, would have 
prevented our revolutionary ancestors from becoming 
citizens of the United States, until sanctioned by the 
treaty recognizing the independence of the several states 
of the union. It also surrenders all that the United 
States gained by the war of 18 12 against the right of 
searching our ships and taking seamen and pressing them 
into service of their native country. 

During the late civil war large numbers came from 
Germany and elsewhere, and enlisted in the army of the 
United States and served with distinction, and were nat- 
uralized before remaining in this country the five years. 
If said treaties express what the law was at that time, it 
was binding on the United States, and every such nat- 
uralization was void. 

But if it was intended by said treaties to constitute a 
new rule on the subject, they will prevent the United 
States from receiving in their navy and army citizens of 
any friendly nation that has assumed the attitude of 
neutrality, for no nation can allow its citizens to join 
the army of either of the belligerant nations and re- 
main neutral, and according to said treaties they will con- 
tinue to be citizens of their native country for the period 
of five years, so that if the United States receives them 
in the army or navy, they, by that act, will violate their 
obligation to the neutral nation, and subject the citizens 
thereof enlisting in the army and navy to the punishment 
indicated by the proclamation of neutrality of their na- 
tive country. 



178 CONSTITUTION OF THE UNITED STATES. 

The reservation of the right to punish for crimes com- 
mitted in his native country before becoming naturalized 
must mean extraditable crimes according to international 
law, so that said treaties do but little more than every 
extradition treaty ; but as to the character of obligations 
entered into with his native country before leaving that 
may be enforced under said treaties, is apt to cause diffi- 
culties. It is a recognized rule, the allegiance to a 
country includes military service in whatever form the 
government may prescribe, therefore that service is in- 
cluded in the allegiance transferred to the nation into 
which he is naturalized ; hence, that can not be the char- 
acter of the obligation, the right to enforce was intended 
to be reserved by said treaties. 

After a foreign born inhabitant has been fully nat- 
uralized, he is entitled to all of the rights, as well as 
privileges and immunities he would be entitled to if he 
had been native born, except that of holding certain offi- 
ces, such as president, etc. 

Par. 4. "To establish uniform laws on the subject of 
bankruptcies throughout the United States. ' ' 

As no state has jurisdiction beyond its territorial limits, 
no state could enact a bankrupt law that would protect 
even its own citizens against the payment of debts to 
citizens of any other state. 

A state might prevent its own courts from giving judg- 
ment against its own bankrupt law if they were not pro- 
hibited from impairing contracts, still the citizen of any 
other state would have the right to sue in the federal 
courts, which could not be controlled by the state laws ; 
therefore, any bankrupt law enacted by any state could 
not protect any debtor. But in addition to this inherent 
difficulty in the way of a state bankrupt law, it is pro- 
vided in the tenth section of article one of the constitu- 
tion, that no state shall pass any iaw impairing the obli- 



GRANT OF POLITICAL POWERS, KfC. 1 79 

gation of a contract ; and every bankrupt law necessarily 
impairs the obligation of contracts : it is true this pro- 
vision in the constitution comes after that which dele- 
gates to congress alone authority to pass bankrupt laws, 
and is a part of that plan, which was doubtless based on 
the difficulty of the states to pass an effective bankrupt 
law, to operate alone therein. 

The power of congress extends to relief against debts 
due to citizens of foreign nations. 

However, no bankrupt law can relieve any state 
against its liabilities, for that would be interfering with 
the sovereignty of the state, and a state may re- 
pudiate its debts, since the adoption of the nth amend- 
ment to the constitution, for there is no power to 
force a state to pay any debt. Nor can any bankrupt 
law relieve any municipal corporation of its debts, for as 
long as persons who are solvent live in a municipal- 
ity, they would be bound to pay taxes ; therefore, 
that municipal corporation can not be adjudged a bank- 
rupt. 

In addition thereto, under the fundamental principles 
of the government, of this country as well as that of En- 
gland (since the Magna Charter was adopted in that 
kingdom), no taxation or scutage can be assessed against 
any people without the consent of their representatives ; 
hence, no court can order the laying or collecting of 
taxes to wind up the debts of any municipal corporation, 
or for any other purpose. 

Experience of the business of the world shows, that in 
the evolution of commerce, some of the best business 
men become so deeply involved in debt, as to bind them 
in a state of bondage to their creditors, and renders 
them valueless as citizens while under that bondage, 



l8o CONSTITUTION OF THE UNITED STATES. 

who, if the} 7 could be released, would make good citizens 
and valuable agents in the development of the resources 
of the country ; there ought, therefore, to be some way 
of releasing them of that thralldom, not only on their 
own account, but for the benefit of the community in 
which they live, and they could not be so completely re- 
lieved by any state ; hence, the authority was properly 
vested in congress. 

Par. 6. "To provide for the punishment of counter- 
feiting the securities and current coin of the United 
States;" 

Par. 7. "To establish post-offices and post-roads ; ' ' 

Par. 8. "To promote the progress of science and 
useful arts, by securing for limited times to authors and 
inventors the exclusive right to their respective writings 
and discoveries ; ' ' 

These three powers properly belong to what is known 
as the civil laws, and according to the general plan of 
the union, they would fall to the state ; but each one of 
them is necessary to enable the federal authorities to 
maintain the government thereof, and are necessarily 
vested in the congress, but they ought not to be aug- 
mented by interpretation ; on the contrary they should be 
strictly construed. 

With the exception of laws to punish counterfeiting 
the securities and currency of national banks, I am not 
aware of any encroachment on these powers by the fed- 
eral government even when strictly construed. 

But if the congress is authorized to charter banks, au- 
thority to create must be accompanied by authority to 
protect them, and as the laws to punish for counterfeit- 
ing bank currency and securities must be the same as laws 
for punishing the counterfeiting of coin and securities of 
the United States, no serious inconvenience can flow 
from the exercise of that power by the congress, particu- 



GRANT OF POLITICAL POWERS, ETC. l8l 

larly as it is held by the supreme court that the states 
may pass laws to punish counterfeiting either the coin 
or securities of the United States, or the currency or se- 
curities of national banks ; but it was also held that the 
state and federal courts are foreign jurisdictions.* There- 
fore, a punishment under state statutes in a state court 
would not bar a prosecution in a federal court under an 
act of congress. 

I can not assent to this ruling by the supreme court, 
but will not discuss it at this point further than to say 
that the government of the United States constitutes a 
part of that of each one of the states, and whenever a 
citizen is punished by either a state or the federal govern- 
ment, for a crime, they each have jurisdiction of, he should 
not again be punished by the other for the same offense ; 
because it is in conflict with the general principles upon 
which the dual form of government of the United States 
is based. 

The authority to establish post-offices and post -roads 
being vested in the congress is so clearly correct that it 
needs neither explanation nor comment. 

Nor does the provision which authorizes the congress 
to secure to authors and inventors the exclusive use of 
their writings and discoveries for limited times, call for 
explanation or comment, further than there is danger of 
the congress renewing useful patents too often, and for 
a longer time than they merit. 

Par. 9. "To constitute tribunals inferior to the su- 
preme court." 

The tribunals intended by this paragraph must be such 
as clerks, marshals, bailiffs, commissioners and all other 
necessary official aid to the court inlexecuting the laws, 



* Gordon v. Gillford, 99 U. S. 



1 82 CONSTITUTION OF THE UNITED STATES. 

for article 3, relating to the judiciary, authorizes the es- 
tablishment of inferior courts, over which the supreme 
court shall have appellate jurisdiction. 

Par. 10. "To define and punish piracies and felonies 
committed on the high seas and offenses against the law 
of nations." 

Authority to punish piracies and felonies committed on 
the high seas and offenses against the law of nations 
must be vested in that division of every government in- 
trusted with the maintenance of the government itself, 
and as the duty not only to maintain the government of 
the United States, but of the states also, is lodged in the 
United States government, it was essentially necessary 
to vest the congress with said powers. Of course, the 
felonies committed on the high seas referred to must be 
felonies committed on ships, whether owned by any one 
of the states, or by the United States, or by private 
citizens, provided it shall float under the flag of the 
United States. 

As shown in the discussion of the right of congress to 
regulate commerce, every ship is regarded as a part of the 
territory of the nation whose flag it carries ; therefore, 
every felony committed on its ships must be treated as if 
it had been committed within the nation itself. 

But as ships will always float under the flag of the 
United States, not under the flag of any state, the 
United States would be responsible, not the state, al- 
though the ship upon which the felony charged to have 
been committed may as matter of fact belong to one of 
the states ; and, as the states are prohibited from owning 
or keeping ships of war in times of peace, the ship of 
no state can carry the territory or jurisdiction thereof 
out into the high seas ; therefore such felonies must al- 
ways be committed outside the jurisdiction of any 



GRANT OF POUTICAI, POWERS, ETC. 1 83 

state ; consequently, it was necessary to give the con- 
gress jurisdiction of the felonies committed on the seas. 

As to jurisdiction of offenses against the law of na- 
tions, since the United States is required not only to 
protect itself but the states also, the United States alone 
must be held responsible for all violations of the law of 
nations committed by a citizen of any of the states, and 
must have jurisdiction of that class of cases. 

Par. 11. ' ' To declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land and 
water. ' ' 

Par. 12. "To raise and support armies, but no appro- 
priation of money to that use shall be for a longer term 
than two years. ' ' 

Par. 13. "To provide and maintain a navy." 

Par. 14. "To make rules for the government and reg- 
ulations for the land and naval forces. ' ' 

Par. 15. "To provide for calling forth the militia to 
execute the laws of the union, suppress insurrection and 
repel invasion." 

Par. 16. "To provide for organizing, arming and dis- 
ciplining the militia, and for governing such part of 
them as may be employed in the service of the United 
States, reserving to the states, respectively, the appoint- 
ment of the officers and the authority of training the 
militia according to the discipline prescribed by con- 
gress. ' ' 

These six paragraphs constitute each a separate part 
of the authority of making and conducting wars, and 
each grant is necessary for that purpose. Without au- 
thority of the United States to make and maintain wars, 
the government thereof could neither maintain itself, nor 
the republican form of government of the respective 
states. But for the purpose of guarding against unneces- 
sary and useless exercise of these powers, they are di- 



184 CONSTITUTION OF THE UNITED STATES. 

vided between the legislative and executive departments, 
and as they can be better explained by considering the 
power delegated to each, and in connection with each 
other, further consideration is postponed until the execu- 
tive department shall be reached. 

Par. 17. "To exercise exclusive legislation in all 
cases whatsoever over such district (not exceeding ten 
miles square) as may by cession of particular states, and 
the acceptance of congress, become the seat of the gov- 
ernment of the United States, and to exercise like au- 
thority over all places purchased by the consent of the 
legislature of the state in which the same shall be, for 
the erection of forts, magazines, arsenals, dock-yards and 
other needful buildings. ' ' 

This paragraph granting exclusive legislation to the 
congress over the seat of government and places pur- 
chased to erect forts, arsenals, etc. , is a limitation on the 
congress exercising exclusive legislation anywhere else 
within any of the states. 

The extent to which the congress may go in the exer- 
cises of that exclusive legislation seems to be unlimited 
by the letter of the constitution, but there are serious 
difficulties in the way of exercising that authority by 
the congress. 

The District of Columbia, the seat of the government, 
was taken partly from the state of Maryland and partly 
from the state of Virginia, in accordance with authority 
granted by this paragraph. If this district constitutes a 
separate jurisdiction from the states within which the 
respective parts are situated, it can not be a state with a 
republican form of government as long as its law-makers 
are chosen by the states generally and not by the people 
thereof ; and the language of the paragraph is, ' ' to ex- 
ercise exclusive legislation in all cases whatsoever over 



GRANT OF POUTICAI, POWERS, ETC. 1 85 

such district." The congress must do the legislation 
thereof itself, and can not authorize it to be done by any- 
other organ or government. 

And this paragraph does not extend the jurisdiction of 
the congress over any additional objects or subjects of 
legislation. 

The congress can not extend the English common law 
over said district, as it relates largely to royalty or 
classes of people, without coming in conflict with the pro- 
vision of the constitution prohibiting the granting of 
titles of nobility. 

Nor can the congress adopt the common law of any 
of the states without preventing every other state from 
changing its own laws in relation thereto. Nor is it pos- 
sible to compress the laws of the several states relating 
to marriage, descent and distribution ; tenures of title to 
real estate, evidences of title to personal property ; of 
contracts, the extent contracts shall be guarded by 
statutes of frauds and perjuries ; nor of trade and traffic 
to be carried on by the citizens thereof. 

But a more serious objection to that interpretation of 
this paragraph arises out of the fact that if said district 
be entirely separated from the states in which its re- 
spective parts are located it will deprive the inhabitants 
thereof of citizenship, for until the fourteenth amend- 
ment to the constitution was adopted no one could be a 
citizen of the United States unless he was a citizen of 
some one of the states in the Union ; or if the inhabitants 
thereof could be citizens of the United States, still they 
would be deprived of voting for any representation in 
congress, or for any presidential elector. 

Consequently, that part of said district taken from the 
state of Maryland is treated as still in that state and 
subject to the laws thereof, and the inhabitants entitled 



1 86 CONSTITUTION OF THK UNITED STATES. 

to all of the rights as well as the privileges and im- 
munities the inhabitants of any other part of that state 
enjoy ; and the inhabitants of that part of said district 
taken from Virginia are entitled to the rights, privileges 
and immunities of the citizens of that state ; and the 
same rule applies to the places where the forts, magazines, 
arsenals, dock-yards, etc. , may be situated. But the con- 
gress being authorized to ' ' exercise exclusive legislation 
in all cases whatsoever ' ' over said places by the plain 
letter of the constitution, that authority in the congress 
must be regarded by all to the fullest extent it can be 
exercised under the system of governments established 
for the United States. Though, as we have seen, the 
congress being inadequate to the duty of exercising all 
of the legislation required for the welfare of said places, 
we are compelled to consider the language therein to 
have been used in a qualified sense. 

Since the language must be considered in a qualified 
sense, the most reasonable qualification that can be put 
upon it, is, that jurisdiction to legislate over the places 
named in the paragraph, should be taken as authority to 
exercise exclusive legislation upon all subjects the con- 
gress was vested with authority to legislate upon, and to 
exercise exclusive legislation over the land itself within 
said district, and to appropriate any part thereof, to any 
governmental use within the scope of the authority of the 
congress to regulate ; to lay off so much thereof, into lots, 
streets and alleys, and reserve some lots for the erection of 
government buildings and sell other lots, and to construct 
such buildings as to the congress might seem proper ; 
and to provide for the protection of the same, and to pro- 
vide for keeping good order in such city, and the whole 
of said district ; leaving the regulation of the civil rights 
of the people thereof, under the control and regulation of 
the state, with all the rights, privileges and immunities 



GRANT OF POUTICAI, POWERS, ETC. 1 87 

of citizens of the state in which that part of said district 
wherein they resided might be situated. And as this is 
the only way the inhabitants of said district can be au- 
thorized to take part in either congressional elections, or 
in choosing presidential electors, said district is held to 
be a part of the state in which its representative parts 
are situated, and the permanent inhabitants thereof are 
citizens of the state in which that part of said district in 
which they reside is situated. 

This rule is also made to apply to the places wherein 
forts, magazines, arsenals, dock-yards and other build- 
ings are erected by the United States. 

Par. 18. "To make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers, and all other powers vested by this constitution 
in the government of the United States, or in any depart- 
ment or officer thereof. ' ' 

This paragraph is said to have found its way into the 
constitution while the draft thereof was before the com- 
mittee on style ; be that as it may, the constitution was 
but a proposition when it left the convention, and the 
paragraph was in the constitution, and constituted a part 
of it when it was submitted to the states, therefore was 
ratified by the conventions of the several states as a part 
of that instrument, and is entitled to as much considera- 
tion as any other part. 

This paragraph is important, for it shows that certain 
powers were delegated to the United States as an en- 
tirety ; and that certain powers were delegated to differ- 
ent departments ; and certain other powers were dele- 
gated to specified officers of the United States. 

A close examination of the constitution will show that 
no power was delegated to the United States except such 
incidental powers as are necessary to enable the United 
States to carry into execution a specified duty imposed 



1 88 CONSTITUTION OF THE UNITED STATES. 

such as guaranteeing to the states a republican form of 
government and other like duties and trusts. 

The great mass of powers delegated by the constitution 
is vested directly in a distinct department, or a named 
official of the United States, and are not permitted to 
pass through the government of the United States to 
such department or official, enables the several depart- 
ments to exercise a restraining influence, not only on 
each other, but on the United States. And this para- 
graph recognizes that division of the powers granted b}^ 
the constitution. 

With the powers granted to separate departments in- 
stead of to the government, it is impossible for the gov- 
ernment to be sovereign, yet the supreme court has 
made use of this paragraph to aid in showing the United 
States to have a sovereign government. 

That part of this paragraph that authorizes congress 
to make laws which are necessary and proper for carry- 
ing into execution the powers delegated to congress was 
entirely useless, for the delegation of a power to the law 
making authority carries with it authority to make a law 
by which the powers can be executed. But it was pru- 
dent, if not necessary, to expressly authorize congress to 
make laws by which powers delegated to another depart- 
ment or officers could be carried into execution. 

Hence, that part of this paragraph which recognizes 
the delegation of powers directly to the departments and 
officers, that do not pass through the government, was 
an important provision. 

Thus far, we have been considering grants of power to 
the congress, but now we approach section nine of article 
one, which contains limitations on the exercise of the 
powers granted in section eight. 

A question may arise as to whether these limitations 



GRANT OF POLITICAL POWERS, KTC. 1 89 

on the powers granted shall be strictly construed, as in 
construing limitations of authority in powers of at- 
torney. 

It will be conceded by all that the powers granted by 
section eight to the congress were granted by the sov- 
ereign authority ; and unless the powers were granted by 
the sovereign authority, the government of the United 
States must be one of usurpation, which I suppose no 
American citizen is ready to admit. 

Then the universal rule of interpreting grants by the 
sovereign authority is to construe them strictly ; the 
grant being strictly construed, it will be a matter of but 
little importance whether the limitations thereof be 
strictly interpreted or not. 

section 9. 

Par. 1. Relates to the importation of African slaves 
until after 1808, and is now obsolete. 

Par. 2. "The privilege of the writ of habeas corpus 
shall not be suspended, unless when in cases of rebellion 
or invasion the public safety may require it. " 

Par. 3. " No bill of attainder or ex post facto law shall 
be passed. ' ' 

Par. 4. "No capitation or other direct tax shall be 
laid, unless in proportion to the census or enumeration 
hereinbefore directed to be taken. ' ' 

Par. 5. " No tax or duty shall be laid on articles ex- 
ported from any state." 

Par. 6. ' ' No preference shall be given by any regula- 
tion of commerce or revenue to the ports of one state 
over those of another ; nor shall vessels bound to, or 
from one state, be obliged to enter, clear, or pay duties 
in another." 

Par. 7. "No money shall be drawn from the treas- 
ury, but in consequence of appropriations made hy 



190 CONSTITUTION OF THE UNITED STATES. 

law ; and a regular statement and account of the receipts- 
and expenditures of all public money shall be published 
from time to time. ' ' 

Par. 8. " No title of nobility shall be granted by the 
United States ; and no person holding any office of profit 
or trust under them, shall, without the consent of the 
congress, accept of any present, emolument, office, or 
title of any kind whatever, from any king, prince, or 
foreign state." 

The unrestrained right to the writ of habeas corpus was 
taken from the British constitution, and has been dis- 
cussed by the courts and statesmen, both of the United 
States and of England, and it is useless to say more 
about it than that, as long as the judges have the cour- 
age to discharge their duty and comply with their oath 
of office, this writ is a complete protection against im- 
prisoning persons for political purposes, and constitutes 
one of the bulwarks of personal liberty under the English 
civilization. 

Bills of attainder, in brief, are legislative trials and 
convictions, and although it is elsewhere provided in the 
constitution that no one shall be deprived of his life, 
liberty or property, except by due course of law, it was 
wise to insert this prohibition against the authority of 
the congress to enact bills of attainder. 

The ex post facto laws referred to in this paragraph 
apply to penal and criminal laws only, and the congress 
by it is prohibited from making any act a crime or penal 
offense after it shall have been committed. That no one 
should be made to suffer for doing that which he has a 
perfect right to do at the time he does it, is so plain to 
the human mind as to require no comment. 

The prohibition against bills of attainder and against 
ex post facto law was also taken from the magna charta of 



GRANT OF POUTICAI, POWERS, KTC. 191 

England, and has received the commendation of statesmen 
on both sides of the ocean. 

The limitation in taxation as well as the power to 
regulate commerce have been fully considered in treat- 
ing of the power granted in section eight of the con- 
stitution. 

As to titles of nobility, they are so repugnant to the 
free governments of the United States that it is some- 
what surprising that the makers of the constitution 
should have thought it necessary to put that prohibition 
in the constitution. 

But since the United States bonds, together with the 
interest -bearing bonds of municipalities and states, 
and the bonds of private corporations, constitute so 
large a proportion of the property in the United States, 
that the owners thereof and of stock in favored corpora- 
tions, having accumulated colossal fortunes to be dissi- 
pated and squandered by their heirs, have betrayed a 
strong inclination to acquire titles, through which to en- 
tail those fortunes on their posterity. That inclination 
is so strong as to have manifested itself in efforts on the 
parts of the possessors of those fortunes to negotiate 
marriages between their daughters and titled men from 
foreign countries. 

Those wealthy dealers having control of the money 
capital of the United States, can furnish the money to 
carry elections ; therefore they are enabled to exercise a 
potent influence in elections, and they might cause such 
changes as to transfer the sovereign authority from the 
people to a moneyed aristocracy. But before that change 
can be effected this prohibition against granting titles of 
nobility will have to be expunged from the constitution, and 
to change the constitution in relation thereto will require 
the assent of three-fourths of the states. Not only is 



192 CONSTITUTION OF THE UNITED STATES. 

the interest of the people of three-fourths of the states 
against such a change, but this provision is so thoroughly 
imbedded in the minds and hearts of the American peo- 
ple that it is scarcely possible to amend it out of the 
constitution. 

Consequently, this is a very important and valuable 
provision of the constitution ; and if it is not of sufficient 
force to prevent the revolution now being inaugurated, it 
will prove a formidable check to it. 

The prohibition against public officers accepting pres- 
ents, etc. , or titles from any king, prince or foreign coun- 
try, is in aid of the prohibition against the granting of 
titles of nobility ; but while this provision is limited to 
public officers, no one can accept any title of nobility 
from any foreign king, prince or foreign nation, except 
to the extent he may owe allegiance thereto, and as long 
as he may continue to owe allegiance thereto he will be 
ineligible to hold any office under the United States. 

Section io. 

Relates to prohibitions on the powers of the states, 
which have been to some extent considered in treating of 
the grant of the same powers to the congress, and there- 
fore taken away from the states. The powers expressly 
prohibited to the states are as follows : 

Par. i. " No state shall enter into any treaty, alliance, 
or confederation ; grant letters of marque and reprisal ; 
coin money ; emit bills of credit ; make any thing but 
gold and silver coin a tender in payment of debts ; pass 
any bill of attainder ; ex post facto law ; or law impairing 
the obligation of contracts ; or grant any title of no- 
bility." 

Par. 2. "No state shall, without the consent of the 
congress, lay any imposts or duties on imposts or exports, 



GRANT OF POLITICAL POWERS, ETC. 1 93 

except what may be absolutely necessary for executing 
its inspection laws; and the net produce of all duties 
and imposts laid by any state on imports or exports shall 
be for the use of the treasury of the United States ; and 
all such laws shall be subject to the revision and control 
of the congress." 

Par. 3. "No state shall, without the consent of con- 
gress, lay any duty of tonnage, keep troops or ships of 
war in time of peace, enter into any agreement or com- 
pact with another state, or with a foreign power, or en- 
gage in war, unless actually invaded, or in such imminent 
danger as will not admit of delay. ' ' 

The states having entered into the compact of the 
union under the Articles of Confederation, any other al- 
liance, compact or confederation must necessarily conflict 
with the compact of the union and the equality of the 
states ; for any compact or agreement between two or 
more states would be like two or more members of 
a business firm conspiring against the firm ; as no 
two states would desire to enter into a compact, 
independent of the union, unless they desired to 
get an advantage over the other states in the union. 
If the states could make treaties or compacts with 
foreign nations, they could by such treaties, not only 
divest the congress of the power to regulate commerce 
with foreign nations, but might impair the power of the 
United States to declare or carry on a war with a nation 
having a treaty with one or more of the states ; hence, 
it was a wise provision, to take from the states, by express 
letter of the constitution, authority to make any inde- 
dependent treaties or compacts, either between any two 
or more states, or with foreign nations. 

Since the duty of protecting the states against every 
foreign force, as well as against each other, is imposed 
on the United States, and letters of marque and reprisal 



194 CONSTITUTION OF THE UNITED STATES. 

can be used only as forces of war, it was necessary to 
prohibit the states from granting them. 

The prohibitions against the states coining money or 
their making any thing but gold and silver coin a tender 
in payment of debts, have each been discussed in con- 
nection with the grant of power to the congress to coin 
money and to borrow money. 

The states being sovereign, they can not be sued with- 
out their consent, and have the power to repudiate any 
debt, and there is no power to force them to pay, though 
the supreme court of the United States held that they 
could be sued in the case of Chisholm v. The State of 
Georgia, but that decision caused an amendment to the 
constitution denying to the federal courts jurisdiction of 
actions or proceedings against any state by a citizen 
of another state, or a citizen of a foreign state or na- 
tion ;* but this amendment leaves that court with juris- 
diction of actions brought by one state against another, 
hence no state can repudiate any obligation to a sister 
state. 

Bills of credit could not constitute obligations to a 
sister state, and from their uses generally, they would 
pass into the hands of those who are least able to lose 
their value ; but the controlling motive that caused the 
states to be prohibited from emitting bills of credit, was 
the great volume of paper money issued by the states 
during the Revolutionary War that was of but little value 
at the time the constitution was being framed, because 
it was out of the power of the states to redeem it, which 
aided in depressing the value of the paper obligations of 
the confederacy ; experience of over a hundred years 
proves the wisdom of this prohibition against the states. 

As the congress is prohibited from passing bills of 



* nth Amendment to the Constitution. 



GRANT OF POLITICAL POWERS, ETC. 1 95 

attainder or ex post facto laws, both of which have been 
briefly explained, to completely guard the citizens against 
bills of attainder and ex post facto laws, it was also neces- 
sary to prohibit the states from doing the same. 

But the provision against the states passing any law 
impairing the obligation of contracts, and against the 
states granting titles of nobility, are each of Ameri- 
can origin, and are each of importance. The latter 
is in conflict with the principles of government, and it 
would be useless to prohibit the congress from granting 
titles of nobility if the states could do so, therefore that 
prohibition was necessary. 

But prohibiting the states from passing laws impairing 
the obligation of contracts has frequently been before the 
supreme court of the United States for interpretation, and 
that court has uniformly construed this provision to in- 
clude charters granted by a state to private persons, and 
that said provision was sufficient to prevent the states from 
amending or repealing such charters, though that inter- 
pretation has never been approved of by all the judges 
thereof. 

The great inconvenience that that interpretation has 
caused the states, together with the fact that it has al- 
ways been sustained by a divided court, entitles it to a 
careful consideration. 

The United States are required to guarantee to each 
state a republican form of government, which can not 
be done as long as the right of the legislature of a state 
to barter away the power of the state to maintain a re- 
publican form of government is upheld by the courts of 
the United States. 

If the legislature of a state can transfer the right of 
the state to exercise its police powers in any one particu- 
lar to a private enterprise, another legislature can trans- 
fer the right of the state to exercise other police powers 



196 CONSTITUTION OF THE UNITED STATES. 

to another private corporation or private individual, and 
the different legislatures may continue to grant the powers 
thereof until the entire police power of the state is bar- 
tered away to private persons or private corporations for 
private uses, and the people thereof completely deprived 
of their right to govern themselves, or to elect officers 
for the government of their state ; for their right to man- 
age their domestic affairs will have been contracted away 
to moneyed individuals or to wealthy private corpora- 
tions, and no possible way to help themselves within 
their reach. 

To get relief from that bondage, they would be com- 
pelled to appeal to the United States to come to their 
relief and secure to them a republican form of govern- 
ment, and relieve them from bondage, for the people 
would be powerless to relieve themselves from their 
bonds, however tyrannically they may be treated by 
their masters, whether stockholders in private corpora- 
tions or individual owners of the police powers that may 
have been granted by the different legislatures of that 
state. The constitution of no state authorizes its legis- 
lature to barter away the liberties of the people ; but, if 
the legislatures of the states are authorized to barter 
away the police powers of the state, they are practically 
authorized to barter away the right of the people to gov- 
ern themselves. The rule of interpreting grants of power 
is to so construe the grant as to leave every thing not 
expressly granted with the sovereign authority. 

No state has as yet granted away its entire police 
powers ; but, if a state can, by its legislature, barter 
away a part of its police powers by an irrevocable con- 
tract, it can the whole by the same sort of contract or 
contracts. And, whenever it reaches that stage in the 
drama, it will become the duty of the United States to 



GRANT OF POUTICAI, POWERS, ETC. 1 97 

take action, under its obligation to guarantee to each, 
state a republican form of government, and it must 
either relieve the state by nullifying those contracts, or 
the United States must embark in the revolution started 
by the indiscreet action of the legislature thereof, and 
uphold the private corporations in the ownership and 
control of that state against the will or consent of the 
people. 

Should the congress declare the transfer of the po- 
lice powers of that state to the private persons, or cor- 
porations, to be void, and by law direct the restoration 
of the republican form of government, for the state, as 
congress would be in duty bound to do ; and the ex- 
ecutive proceed to execute that law of the congress, and 
the private person claiming to own the whole police 
power of that state should apply for an injunction to stop 
the proceedings to oust said private person or corporation 
of the management and control thereof, what would the 
supreme court of the United States do? What could 
the supreme court do ? All of the writs issued by that 
court run in the name of the president ; so that, in 
the case here hypothecated, there would be an order 
issued directly by the president requiring the private 
person or corporation to surrender up the police powers 
of the state to the state authorities, and the mandate of 
the court issued in the name of the president, ordering 
said private person or corporation not to surrender to the 
state any part of its police powers, and restraining all 
persons and officers from interfering with the free exer- 
cise and control of the police powers of that state by 
such private person or corporation. 

For, if it was proper to uphold the legislative grant as to 
one police power, it would be equally as obligatory on 
that court to uphold legislative grants of all of the police 
powers of the state ; and if it was lawful to uphold such 



198 CONSTITUTION OF THE UNITED STATES. 

grants before the congress should take hold of the mat- 
ter, it would be lawful to uphold the grant to the private 
person or corporation even against the power of the con- 
gress ; for if the grants were lawful, it would be unlaw- 
ful for congress to interfere with them ; and it would be 
the duty of the court to protect the grantee even against 
the powers of the congress. This is an extreme case, 
but it is sometimes necessary to resort to extreme casea 
to bring a question rightfully and clearly before our minds. 

Furthermore, the authority of a legislature to sell out 
its power or ability to legislate for the welfare of the peo- 
ple, is wholly incompatible with a republican form of 
government ; hence, by recognizing the authority of the 
legislatures of the states to barter away, by irrevocable 
contracts, the power to legislate for the people, by the su- 
preme court, of itself, destroys the republican form of 
government of the states. 

The language of the paragraph under consideratoin is : 
' ' No state shall . . . pass any bill of attainder, ex 
post facto law ; or law impairing the obligation of con- 
tracts." 

This can not be construed as a prohibition against a 
state impairing its own contract, for it is a well-known 
fact that a state may repudiate its own contracts, and 
since the adoption of the eleventh article of amendment 
to the constitution the federal courts have no jurisdiction 
to force the states to comply with contracts or obliga- 
tions, unless they be obligations with a sister state. 

It was feared, at the time the constitution was being 
constructed, that some of the states would enact laws 
obstructing the means of enforcing the collection of debts 
due to foreigners (which is recognized as the remedy or 
obligation of contracts) , for the states have the right to 
control the jurisdiction of their own courts and minis- 
terial officers connected with the court. No state could 



GRANT OF POLITICAL POWERS, ETC. 1 99 

change any contract without interfering with its citizens 
right to make contracts, even for the sale of the products 
of their labor, which right is one of the fundamental 
principles of freedom ; therefore, no fear was entertained 
at that time of any states attempting to change any con- 
tract, but the remedy or obligation of all liabilities being 
subject to the control of the states ; and this provision of 
the constitution recognizing that right, only provides 
that the states shall not impair the remedy or obligation 
of contracts, in regulating its courts and the jurisdiction 
thereof. As there was no remedy, or obligation of any 
contract, any state had made, and none likely ever to be 
provided, it would have been an utterly idle display to 
have attempted to prevent the states from impairing that 
which had no existence, and was not likely ever to have 
any existence. 

But, it was intimated by several of the judges of the 
supreme court, in the first case in which that court 
decided that private corporations chartered by the 
states constituted contracts on the part of the state 
(which was the celebrated Dartmouth College case) , that 
the states could protect themselves by reserving in the 
charter, or by a general law, the right to amend or re- 
peal the charter, which provision would enter into and 
form a part of the contract, as accepted by the corpora- 
tors, and that being reserved in the contract would be 
enforceable in law. Since then all of the states have 
amended their respective state constitutions, or enacted a 
general statute reserving the right to amend, alter or re- 
peal all grants of franchise or chartered rights, which re- 
lieves the states of the greater part of the evils arising 
out of that interpretation of the constitution. 

But the supreme court of the United States, by obiter 
dictum, expressed in the argument of several cases, claim 
that the courts of last resort of the states, are estopped 



200 CONSTITUTION OF THK UNITED STATES. 

from overruling a former decision construing the state 
law, or the constitution thereof, if in the opinion of the 
federal courts such overruling may perchance impair the 
the remedy or obligation. The former decision sus- 
taining rights of contracts under the law of a state 
ought to be overruled, if erroneous. The courts of 
the state and the ministerial officers connected there- 
with, constitute the remedy or means provided by law 
for obliging the parties to any contract to comply there- 
with, and all contracts that may be made, are entered 
into with that understanding. Whenever the court 
of last resort, whether it be a court of a state or the 
supreme court of the United States overrules any judg- 
ment, it amounts to a decision that the overruled de- 
cision never was the law on the subject, and nobody 
could acquire any right by reason of the former decision, 
unless that decision announced the law on the subject. 
Of course the parties to the former case would be es- 
topped by it, but no one who was not a party could ac- 
quire any right under it, for the former decision was con- 
trary to the lawful obligations of the party sued ; no 
right can be accorded to the payee wrongfully, unless 
they are wrongfully imposed on by the payer, and the 
payer has a right to make use of all legal defenses in 
every suit that may be brought against him. But the 
court and its attachments being the remedy through 
which the parties are obliged to perform their con- 
tracts, because that court decides that it erred in a for- 
mer decision, can not be held to be an impairing of the 
remedy, but rather a strengthening of the remedy, for 
the payer is entitled to a lawful compliance with the con- 
tract, as well as the payee ; hence, the only question the 
supreme court would have a right to inquire into on an 
appeal of the case of that sort, is whether the last de- 
cision is the law of the case, and it has no right to con- 



GRANT OF POUTICAI, POWERS, ETC. 201 

sider the effect of the former case at all unless it declares 
the law on the subject ; in that event the supreme court 
should itself declare the law of the case. 

But returning to the prohibition against the states mak- 
ing laws impairing the obligation of contracts, the remedy 
suggested by some of the judges of the supreme court in 
the Dartmouth College case, to- wit : of the states reserv- 
ing the right to alter, amend or repeal charters, leaves 
serious difficulties in the way of the states exercising 
their police powers fully, and they must necessarily cause 
the supreme court great trouble in disposing of the 
various questions that are to arise under that ruling. 

The right to repeal the charter of a private corporation 
involves the right to prohibit the use of the corporate 
rights thereof, and in nearly every private corporation 
the tangible property connected therewith is so changed 
as to render it valueless for any other purpose ; and to 
take away from the corporation the use of the corporate 
franchises would virtually destroy the value of the 
tangible property connected therewith, consequently, the 
right not only to impair, but to absolutely destroy, the 
tangible property used therewith must be included in the 
right to repeal the charter by its terms. 

The constitution of every state contains a clause pro- 
hibiting the taking of private property for public use 
without just compensation being previously paid,* and 
by the fifth amendment of the federal constitution 
the United States is prohibited from taking private 
property without paying for it ; consequently, in the 
absence of any contract, no state could deprive any one 
of his private property without previously paying just 
compensation for it, even if it should be needed for 
public uses. But, under the contract to repeal, extremely 



* See Poores' Constitution, etc. 



202 CONSTITUTION OF THE UNITED STATES. 

valuable property may be destroyed for public reasons 
without paying any thing for it. The state may au- 
thorize the corporators to change their tangible property 
so as to be used in conducting the corporate business at 
great cost at one session of its legislature, and at the 
session of the next legislature it may destroy it all with- 
out any compensation whatever. Whereas, without such 
a contract no state could enact a law repealing such cor- 
poration without repairing all damages caused thereby ; 
for the repeal of the charter would be deemed a taking for 
public use ; hence there would be no escape from paying 
for the property so taken if the decision in the Dart- 
mouth College case had never been rendered. 

What the supreme court will do with this question re- 
mains to be seen ; but the safest and easiest way out of 
the difficulty appears to be the overruling of the Dart- 
mouth College case and all others sustaining it, and to 
restore the states to their sovereign right to repeal all 
laws and charters, whether of a private or public char- 
acter, that may appear to operate against the public 
policy of the state ; leaving the protection of the citizens 
thereof to the state laws, as was intended by the makers 
of the constitution. 

Since the congress was prohibited from laying a tax 
on any article exported from any state, it was necessary 
to prohibit the state from laying a tax on exports there- 
from, except to the extent it may be necessary to defray 
the expenses of its inspection laws. But why the states 
should be authorized to lay such export taxes as the con- 
gress may consent to, provided the entire surplus over 
and above what may be necessary to defray the ex- 
penses of the inspection laws of the states shall be held 
for the United States, and paid into the treasury thereof, 
is not so clear. For no state is likely to tax its own 
citizens for the benefit of the United States, unless the 






GRANT OF POLITIC AI, POWERS, ETC. 203 

tax would greatly redound to the benefit of the state lay- 
ing the tax. 

Furthermore, no state can lay an export tax further 
than may be necessary to defray the expenses of its in- 
spection laws without the consent of the congress, and 
the congress is expressly prohibited from laying a tax on 
articles exported from any state, and is prohibited from 
showing a preference to the ports of one state over those 
of another ; therefore should the congress consent that 
any number of the states, less than all of them, might 
lay that tax, that consent would amount to giving a 
preference to the ports of certain states over the ports of 
other states. And should the congress consent that all 
of the states might lay an export tax on articles exported 
therefrom, that would amount to the congress doing 
through the states that which the congress is expressly 
prohibited from doing by itself. 

This reasoning applies with equal force to all export 
taxes. 

Should the congress resort to this method of inducing 
the states to tax themselves for the use of the United 
States, in a way the congress is prohibited from laying 
and collecting taxes, the states respectively will have 
the power at all times to repeal such taxing laws, with- 
out consulting the congress about it. Suppose, after the 
congress had given its consent to any or all of the states 
to procure and own ships of war in times of peace, and 
after the states had procured ships of war the congress 
should conclude that it had acted unwisely, and should 
conclude to withdraw its assent therefrom, and the state 
or states that owned ships of war desired to continue to 
maintain them, what proceedings can the United States 
adopt to force a state to give them up? The duty of 



204 CONSTITUTION OF THE UNITED STATES. 

the United States to maintain itself, and to protect all of 
the states in their equal privileges and rights in the union, 
is sufficient to justify the United States in coercing any 
state to give up ships of war. 

For, if one state had ships of war to the exclusion of 
other states, that fact would be regarded with jealousy 
by the other states, and might be reasonably looked on 
as a menace against them. 

But to cause that state to dispose of its ships, would 
be equivalent to taking such ships for public use, and the 
United States would be obliged to pay for them. 

The prohibition against the state keeping troops in 
time of peace, contained in this paragraph, has been so 
modified by the second article of amendment to the con- 
stitution as to amount to nothing more than a prohibition 
against the states keeping standing armies, leaving the 
states free to maintain any character of a military force 
they may choose to keep. 

Since the United States are required to protect all of 
the states alike against each other, as well as against all 
foreign powers, no state ought to be authorized to enter 
into any agreement or compact with another state, or 
with a foreign power, or engage in a war, unless actu- 
ally invaded, or be in such imminent danger as will not 
admit of delay. 

To enumerate all of the subjects over which the states 
have concurrent jurisdiction with the United States, 
would involve a discussion of privileges and immunities 
not desired to be entered into under the plan of this re- 
view. I suppose, however, that it will be conceded that 
the states have jurisdiction of all necessary powers to con- 
duct the governments thereof, except such as are ex- 
pressly prohibited to them, including the powers vested 
in the congress, until the congress shall divest the states 
thereof, by assuming control of the same. 



ORGANIZATION OF THE EXECUTIVE. 205 

CHAPTER VII. 

ORGANIZATION OF THE EXECUTIVE. 



Article II. 

Sec. 1 , Par. i . ( ' The executive power shall be vested 
in a President of the United States of America. He 
shall hold his office during the term of four years, and, 
together with the vice-president, chosen for the same 
term, be elected as follows : ' ' 

Par. 2. "Each state shall appoint, in such manner as 
the legislature thereof may direct, a number of electors 
equal to the whole number of senators and representa- 
tives to which the state may be entitled in the congress ; 
but no senator or representative, or person holding an 
office of trust or profit under the United States, shall be 
appointed an elector. ' ' 

Par. 3. "The electors shall meet in their respective 
states, and vote by ballot for two persons, of whom one 
at least shall not be an inhabitant of the same state with 
themselves. And they shall make a list of all the per- 
sons voted for, and of the number of votes for each ; 
which list they shall sign and certify, and transmit sealed 
to the seat of the government of the United States, di- 
rected to the president of the senate. The president of 
the senate shall, in the presence of the senate and house 
of representatives, open all the certificates, and the vote 
shall then be counted. The person having the greatest 
number of votes shall be the president, if such number 
be a majority of the whole number of electors appointed ; 
and if there be more than one who have such majority, 
and have an equal number of votes, then the house of 



206 CONSTITUTION OF THE UNITED STATES. 

representatives shall immediately choose, by ballot, one 
of them for president ; and if no person have a majority, 
then from the five highest on the list the said house shall, 
in like manner, choose the president. But in chosing 
the president the vote shall be taken by states, the repre- 
sentation from each state having one vote ; a quorum for 
this purpose shall consist of a member or members from 
two-thirds of the states, and a majority of all of the 
states shall be necessary to a choice. In every case, after 
the choice of the president, the person having the great- 
est number of votes of the electors shall be the vice- 
president. But if there should remain two or more who 
have equal votes, the senate shall choose from them by 
ballot the vice-president. 

' ' The congress may determine the time of choosing the 
electors, and the day on which they shall give their 
votes ; which day shall be the same throughout the 
United States. 

' ' No person except a natural born citizen, or a citizen of 
the United States at the time of the adoption of this con- 
stitution, shall be eligible to the office of president ; 
neither shall any person be eligible to that office who 
shall not have attained to the age of thirty-five years, 
and been fourteen years a resident within the United 
States. 

' ' In case of the removal of the president from office, 
or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall de- 
volve on the vice-president, and the congress may bylaw 
provide for the case of removal, death, resignation, or in- 
ability, both of the president and vice-president, declar- 
ing what officer shall then act as president ; and such 
officer shall act accordingly, until the disability be re- 
moved, or a president shall be elected. 

"The president shall, at stated times, receive for his 



ORGANIZATION OF THE EXECUTIVE. 207 

services a stated compensation, which shall neither be in- 
creased nor diminished during the period for which he 
shall have been elected, and he shall not receive within 
that period any other emoluments from the United States, 
or any of them. 

' ' Before he enter on the execution of his office he 
shall take the following oath or affirmation : '/ do sol- 
emnly swear (or affirm) that I will faithfully execute the 
office of President of the United States, and will, to the best 
of my ability, preserve, protect and defend the Constitution 
of the United States. ' ' ' 

This is the original plan of electing the president and 
vice-president of the United States. But Mr. Jefferson 
and Mr. Burr were of the same school of politics, and 
they were both voted for by the presidential electors in 
1800, and they got the same electoral vote, which was a 
majority of all of the electoral votes ; therefore, it de- 
volved on the house of representatives to decide which of 
them should be president. The house of representatives 
voting by states, and not i?idividually , there were as many 
states for the one as for the other, and it so continued 
for a great while ; and it was seriously feared that the 
house of representatives would not come to an agree- 
ment. 

Had the house of representatives failed to decide be- 
tween the two candidates, the election would have de- 
volved on the senate to select the president ; as the sen- 
ate was to elect a vice-president before the 4th of March 
following, it would then have been the duty of the vice- 
president to assume the duties of president, and the 
senate would have to elect a president of the senate p?o 
tempore. But this mode of electing the president would 
have precluded the people from any participation in the 
selection of president ; and, to avoid a repetition of so 



208 CONSTITUTION OF THE UNITED STATES. 

embarrassing a contingency, the eighth congress, on the 
1 2th of December, 1803, proposed an amendment, in lieu 
of the third paragraph of the first section of the second 
article of the original constitution, which was declared, 
by proclamation by the secretary of state, to have been 
adopted by a sufficient number of the states to make it a 
part of the constitution. 

TWELFTH AMENDMENT, 

Which is as follows : ' ' The electors shall meet in their 
respective states and vote by ballot for president and vice- 
president, one of whom, at least, shall not be an inhabit- 
ant of the same state with themselves ; they shall name 
in their ballot the person voted for as president, and in 
distinct ballots the person voted for as vice-president, and 
they shall make distinct lists of all persons voted for as 
president, and of all persons voted for as vice-president, 
and of the number of votes for each, which list they 
shall sign and certify, and transmit sealed to the seat of 
government of the United States, directed to the presi- 
dent of the senate ; the president of the senate shall, in 
the presence of the senate and house of representatives, 
open all the certificates, and the vote shall then be 
counted ; the person having the greatest number of votes 
for president shall be the president, if such number be a ma- 
jority of the whole number of electors appointed, and if no 
person have such majority, then, from the persons having 
the highest numbers, not exceeding three, on the list of 
those voted for as president, the house of representatives 
shall choose immediately, by ballot, the president. But, in 
choosing the president, the votes shall be taken by states, 
the representatives from each state having one vote. A 
quorum for this purpose shall consist of a member or 
members from two- thirds of the states, and a majority of 
all of the states shall be necessary to a choice. And if 



ORGANIZATION OF THE EXECUTIVE. 209 

the house of representatives shall not choose a president 
whenever the right of choice shall devolve upon them, 
before the 4th day of March next following ; then the 
vice-president shall act as president, as in the case of the 
death or other constitutional disability of the president. 
The person having the greatest number of votes as vice- 
president shall be the vice-president, if such number be 
a majority of the whole number of electors appointed ; 
and if no person have a majority, then, from the two 
highest number on the list, the senate shall choose the 
vice-president. A quorum for that purpose shall consist 
of two-thirds of the whole number of senators, and a 
majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the 
office of president shall be eligible to that of vice-presi- 
dent of the United States." 

It will be observed that by the original provision no 
qualifications were expressly provided for the vice-presi- 
dent, but that was not necessary, for no one could be 
voted for as vice-president, both being voted for as presi- 
dent ; therefore the same qualifications were required 
of persons to be vice-president as were required for 
president. 

But when persons were authorized to be voted for and 
selected to the vice-presidency, it became necessary to 
prescribe qualifications for that office. 

It will be borne in mind that each state appoints a 
number of electors, equal to the number of senators and 
representatives it is entitled to in the congress, in such 
manner as the legislature thereof may provide. These 
electors are required to meet in their own state and vote 
by ballot for president and vice-president and certify 
that vote to the seat of the government of the United 
States, directed to the president of the senate thereof. 

So that the electors to choose a president and vice- 



2IO CONSTITUTION OF THE UNITED STATES. 

president are elected by the voters of the states, taken 
within the state, and they perform the function of their 
office wholly within their own state, and are commis- 
sioned to their office by authority of their own state ; 
consequently, they are officers of their own state. They 
are, however, limited in casting their votes to but one 
person who resides in the same state with themselves ; 
that is they may vote for a person for president residing 
in their own state, provided they vote for a person residing 
in some other state for vice-president ; or they may re- 
verse it, and vote for one of the citizens of their own 
state for vice-president, provided they vote for a citizen 
of some other state for president. 

This provision is thought to be sufficient to guard 
against electing a president and vice-president from the 
same state ; but it is addressed to the electors only, and 
is not made a disqualification to hold the office of either 
president or vice-president. It being no disqualification 
where the certificate shows the vote of any state to have 
been taken in all other respects according to law, ought 
the vote of such state to be rejected, particularly if re- 
jecting that vote would throw the election in the house 
of representatives and change the election from one 
party to another. It must be conceded that the congress 
must refuse to count the vote of a state in which the 
electors vote for persons for president and for vice-presi- 
dent both of whom reside in the same state with them- 
selves, unless both houses concur in counting it. 

The language of the constitution is : ' ' The certificates 
shall be opened by the president of the senate in the 
presence of the senate and house of representatives and 
the votes shall then be counted. ' ' This can not be con- 
strued to require the counting of votes, unless they were 
legally cast. No one will contend that, if by counting 
the votes, it would elect the Prince of Wales, or any 



ORGANIZATION OF THE EXECUTIVE. 211 

foreign prince, or one who was foreign born, or less than 
thirty-five years of age, that the votes must be counted 
however clearly the certificates may show on their face 
that the vote was taken and certified to in every respect 
according to law. But, as before shown, the congress 
being divided into two houses, and each being required 
to act separately in enacting laws, and in doing all other 
things, except wherein they may be expressly authorized 
to act together, the vote of no state appearing on the 
face thereof to be defective, or informal, can be counted, 
unless each house shall by separate act concur in count- 
ing the vote. Nor can the vote of any state appearing 
on the face of the certificate thereof, to be formal and 
valid, be rejected, unless the two houses shall by separate 
acts concur in rejecting it. The vote of every state ap- 
pearing to be formal must be counted, unless the two 
houses agree by separate action not to count it. And, 
on the contrary, the vote of no state appearing on the 
face of the certificate thereof to be defective, can lawfully 
be counted, unless the two houses by separate action con- 
cur in counting it. 

But the constitutional provision is silent as to how the 
counting of a defectively certified vote, or votes appear- 
ing on the face of the certificate thereof to be formal, 
shall be rejected or counted. 

Any motion to reject or count a vote must be made 
after the counting begins and before it is concluded, for 
if it be delayed until the vote shall have been counted, it 
will be too late, as the counting of the vote amounts to a 
decision by the congress, from which there is no appeal, 
nor can the congress itself set aside that judgment and 
make a new count or change the result of the judgment 
by the first counting of the vote. The counting of the 
vote must be in the presence of the senate and house of 
representatives, and when the votes shall be so counted 



212 CONSTITUTION OF THE UNITED STATES. 

it must be final ; and the congress must declare the result 
thereof, which constitutes a final and irrevocable judgment 
of the congress, and there is no authority for the congress 
itself to reconsider that count. 

It being absolutely necessary to vest somewhere juris- 
diction to determine who are elected president and vice- 
president, the most appropriate tribunal to execute so 
delicate a trust, is the two houses of congress, one house 
representing the political organizations of the states, and 
the other the people thereof. Thus the congress is 
wisely converted into a court with exclusive jurisdiction 
to determine this grave question. 

Should the congress adopt a rule requiring all motions 
to be in writing and in form of charges and specifications, 
and upon the filing of a motion to count a defectively 
certified vote, or to reject a properly certified vote, the 
two houses should adjourn and immediately convene in 
their respective houses and consider the same, or the 
congress might call through the list of the states to ascer- 
tain whether the vote of any other state was objected to 
or desired to be counted, notwithstanding the informality 
of the certificate, and vote, and the two houses then ad- 
journ and repair to their respective houses. And as soon 
as all of the charges and specifications shall have been 
disposed of by each house separately, the two houses 
should again come together and proceed with the count 
of the votes as decided upon in the respective houses and 
pronounce their judgment thereof. While the congress 
has exclusive final jurisdiction to determine whether to 
count the vote of a state upon the face of the certificate of 
the vote thereof, it has no authority to inquire into the elec- 
tion of the presidential electors of the several states fur- 
ther than to inquire whether the elections were held at 
the time prescribed by the act of congress. For the con- 
stitution provides that : 



ORGANIZATION OF THE KXKCUTIVE. 213 

' ' Each state shall appoint in such manner as the legis- 
lature thereof may direct a number of electors equal to 
the whole number of senators and representatives to 
which the state may be entitled in the congress ; but no 
senator or representative or person holding an office of 
trust or profit under the United States shall be appointed 
an elector. 

' ' The congress may determine the time of choosing 
the electors and the day on which they shall give their 
votes, which shall be the same throughout the United 
States." 

The congress has provided by law that the electors 
shall be elected on the Tuesday after the first Monday in 
November in each state, and that the electors shall meet 
at the seat of government of their respective states on the 
second Monday in the January following their election, 
and then and there cast their votes for president and vice- 
president, and this is all the power the congress has over 
the subject under the constitution ; but, having jurisdic- 
tion to enact this law, it has jurisdiction to determine 
whether it has been complied with, but can go no further 
in its inquiry about choosing the electors. For the 
mode and manner of appointing the presidential electors 
is expressly vested in the states respectively, and neither 
the mode nor the manner of electing them can be inter- 
fered with by the congress without usurping power 
vested in the states by the plain letter of the constitu- 
tion. 

The congress is, therefore, bound to accept the cer- 
tificate of the state authorities as to the regularity and 
validity of the choosing of the presidential electors. 

However, in 1876, the congress decided that it had the 
right to go behind the returns and certificates of the state 
officials, and to declare a different set of electors had been 
chosen by the popular vote of the state than those certi- 



214 CONSTITUTION OP THE UNITED STATES. 

fied to have been elected by the executive authority of 
the state. But that action of that congress was con- 
demned by the people at the ballot-box at the next ensu- 
ing election by electing a congress with a decided majority 
on the other side of the political question. 

Hence, as the congress has no authority to interpret 
the constitution (as will be shown in considering the 
judiciary department), the act of that congress in going 
behind the returns and certificates of the state officials 
can have no effect or influence on the powers of congress 
in the future, even as precedent to be followed. 

The congress, however, if both houses could be in- 
duced to concur therein, could refuse to count the vote 
of a state, and in that way defeat an election. Or, 
should both houses of congress concur in so doing, may 
count the vote of a state defectively certified to, or not 
given at the time prescribed by the act of congress ; but 
the congress has no power to count the vote of a state 
for any one, unless that state actually voted for such 
person. 

Consequently, the congress may count out those who 
may have been elected, and throw the election into the 
house of representatives. But it can in no event consti- 
tutionally count persons into the offices of president and 
vice-president, who were not elected thereto. 

The congress being itself elected every two years, is 
not likely to resort to such extreme measures as to count 
out one elected by the people, unless under a high state 
of political excitement. And such excitements usually 
arise from efforts on the part of one political party 
to change the policy of the government, and an equally 
zealous effort of the other party to hold on to the exist- 
ing policy. 

The probability is, that the party that elects the 
president and vice-president will also elect the new house 



ORGANIZATION OF TH£ KXKCUTIVE. 215 

of representatives. But the counting will have to be by 
the congress elected the two years before the election of 
the president and vice-president, and the senators to act 
on the counting will all have been elected before the 
president and vice-president whose election is to be passed 
on by the congress. 

Should the congress called on to count the votes, be 
corrupt enough to refuse to count the votes fairly, and 
throw the election in the house of representatives, where 
the vote would have to be taken by states, it might be that 
enough of the representatives of the smaller states would 
follow the expressed will of the people thereof to still elect 
the same person that had been elected by the people of the 
United States. However, if they should continue subject 
to the political lash, and vote to defeat the will of the 
people, there is no remedy as to that decision. But the 
people would hold their members in each house in re- 
membrance, and having been misrepresented by them 
once, would not give them another opportunity. 

Unless a majority of the states should be with the de- 
feated party, the rejection of enough of the electoral vote 
to throw the election in the house of representatives would 
be an idle act, and would not likely be resorted to, as it 
could not avail anything to the party resorting to such 
extreme schemes as to throw out votes without cause. 
Therefore, no serious evils need be apprehended from that 
source. Since the custom of buying the vote of states ap- 
peared in the presidential election, the wisdom of author- 
izing the congress to fix the same day for choosing the elec- 
tors, and the same day for the electors to meet at the seat 
of government of their own state, to vote for president and 
vice-president throughout the United States, has become 
manifest ; for it is much more difficult to buy the vote of 
states when the elections are held on the same day in 
each of the states, as the voters who were usually carried 



2l6 CONSTITUTION OF THE UNITED STATES. 

from one state to another to vote before this act of con- 
gress, are required to stay in their own states and vote 
to aid in carrying their own election ; and as the juris- 
diction of no state extends beyond its boundaries, and 
the states are prohibited from forming any agreements 
or compacts with each other, the congress is the only 
authority that has jurisdiction to enact such a law, and 
the United States alone can enforce it. 

Authority in congress to provide for cases in which 
neither the president nor the vice-president can act, is 
manifestly to avoid the possibility of a vacancy in the 
office of the chief executive of the United States. 

With no provision in the constitution extending further 
than the vice-president, a vacancy might occur during 
a session of the congress, and as no bill can become a 
law without the approval of the president, or being passed 
over his veto, a vacancy in the office of president would 
stop the running of the governmental machinery and all 
possible legislation. 

The congress, being impressed with what a dire ca- 
lamity a vacancy in that office would be, at an early day 
discharged that duty, and provided that in the absence 
of the president and the vice-president, or the inabil- 
ity of either one of them to act, the duties of the 
office of president shall first devolve on the president of 
the senate ; if there be none, then on the speaker of the 
house of representatives to act until the inability be 
removed, or a president be elected. 

Sec. 147. " Whenever the offices of president and vice- 
president both become vacant, the secretary of state shall 
forthwith cause a notification thereof to be made to the 
executive of every state, and shall also cause the same 
to be published in at least one of the newspapers printed 
in each state. ' ' 

Sec. 148. " The notification shall specify that electors 



ORGANIZATION OF THE EXECUTIVE. 217 

of a president and vice-president of the United States 
shall be appointed or chosen in the several states as 
follows : 

" 1 st. If there shall be the space of two months yet 
to ensue between the date of such notification and the 
first Wednesday in December next ensuing, such notifica- 
tion shall specify that the electors shall be appointed or 
chosen within thirty-four days preceding such first 
Wednesday in December. 

" 2d. If there shall not be the space of two months 
between the date of such notification and such first 
Wednesday in December, and if the term for which the 
president and vice-president last in office were elected 
will not expire on the third day of March next ensuing, 
the notification shall specify that the electors shall be 
appointed within thirty-four days preceding the first 
Wednesday in December in the year next ensuing. But 
if there shall not be the space of two months between 
the date of such notification and the first Wednesday in 
December then next ensuing, and if the term for which 
the president and vice-president last in office were elected 
will expire on the third day of March next ensuing, the 
notification shall not specify that electors are to be ap- 
pointed or chosen." 

Sec. 149. *' Electors appointed or chosen upon the noti- 
fication prescribed by the preceding section shall meet and 
give their votes upon the first Wednesday in December 
specified in the notification." 

Sec. 150. "The provisions of this title relating to the 
quadrennial election of president and vice-president, shall 
apply with respect to any election to fill vacancies in the 
office of president and vice-president, held upon a notifi- 
cation given when both offices become vacant. ' ' * 



* Revised Statutes of United States, Title 3. 



2l8 CONSTITUTION OF THE UNITED STATES. 

The former quadrennial elections of president and vice- 
president required the electors to meet in their respective 
states on the first Wednesday in December ensuing the 
choosing of the electors to cast their votes. But the law 
now requires them to meet on the second Monday in 
January, following the election of the electors, to cast 
their vote for president and vice-president. Whether the 
change in the time for the electors to meet to cast their 
vote will have any effect on the foregoing provision, is 
not necessary to inquire into in this review. 

The salary of the president being subject to no increase 
or diminution during his term of office, was thought suf- 
fient and proper to avoid any bargaining between the 
president and congress, and to relieve the president from 
the control of the congress ; but the modern use of the ap- 
pointing power of the president, to control legislation, 
shows that it is inadequate to produce so desirable an 
effect, though it relieves the president of any inducement 
to court the congress on account of his salary. It also 
removes every means of forcing the president to dis- 
charge his duty, except in so far as he may feel bound 
by his oath, or fear of impeachment (and it is puerile 
to expect to bind ambitious officials by oaths), and as 
hereinbefore shown he may so use his appointing power 
as to defeat an impeachment. Hence, the congress 
should be cautious about augmenting his power by in- 
creasing his salary, particularly, as he can excuse him- 
self for vetoing a reduction, on the plea of delicacy, as it 
could not apply to himself, therefore it will be ex- 
tremely difficult to reduce the same. The president should 
be paid an amount adequate to maintain the dignity of his 
office, and no objection can be made to the salary, however 
high it may be, provided it is not put so high as to attract 
venal aspirants to seek the office for the pay it carries, who 
will anticipate it to bribe his way into that office. 



ORGANIZATION OF THE EXECUTIVE. 219 

Sec. 2. " The president shall be commander in chief of 
the army and navy of the United States, and of the 
militia of the several states when called into the actual 
service of the United States ; he may require the opinion, 
in writing, of the principal officer in each of the execu- 
tive departments, upon any subject relating to the duties 
of their respective offices, and he shall have power to 
grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. 

' c He shall have power, by and with the advice and 
consent of the senate, to make treaties, provided two- 
thirds of the senators present concur ; and he shall nomi- 
nate, and by and with the advice and consent of the 
senate, shall appoint ambassadors, other public ministers 
and consuls, judges of the supreme court, and all other 
officers of the United States, whose appointments are not 
herein otherwise provided for, and which shall be estab- 
lished by law. But the congress may by law vest the ap- 
pointment of such inferior officers, as they think proper, 
in the president alone, in the courts of law, or in the 
heads of departments. 

' ' The president shall have power to fill up all vacan- 
cies that may happen during the recess of the senate, by 
granting commissions which shall expire at the end of 
their next session." 

Sec. 3. " He shall from time to time give to the con- 
gress information of the state of the union, and recom- 
mend to their consideration such measures as he shall judge 
necessary and expedient ; he may, on extraordinary occa- 
sions, convene both houses of congress, or either of them, 
and in case of disagreement between them, with respect 
to the time of adjournment, he may adjourn them to such 
time as he shall think proper ; he shall receive ambassa- 
dors and other public ministers ; he shall take care that 



220 CONSTITUTION OF THE) UNITED STATES. 

the laws be faithfully executed, and shall commission all 
the officers of the United States. ' ' 

Sec. 4. "The president, vice-president, and all civil 
officers of the United States shall be removed from office 
on impeachment for, and conviction of, treason, bribery, 
or other high crimes and misdemeanors. ' ' 

The making of the president commander-in-chief of 
the army and navy of the United States, and of the 
militia of the several states when called into actual serv- 
ice of the United States, does not mean that he is to 
command either in person ; since, as commander-in- 
chief of both the army and navy practically precludes 
the president from commanding either of said arms of 
war in person, this section could not have been in- 
tended to vest him with that authority, hence the presi- 
dent cannot command either the army or navy in 
person while in active service without violating this 
section. 

The co-operation of the army and navy must be 
obtainable to enable a nation to use all of its forces in its 
wars ; this co-operation requires that both of these 
arms of war be subject to the control of one common au- 
thority, to make reports to, and receive orders from. 
The president is vested with this common authority, 
and the exercise of it requires him to keep himself in 
convenient communication with each. He therefore 
cannot possibly in person command either while in active 
motion, and at the same time keep himself in convenient 
communication with the other. Therefore, as com- 
mander-in-chief of both, he is practically precluded 
from in person commanding either, while it is in active 
service. As commander of the militia of the several 
states, he may order it to do duty in any part of the 
army of the United States. This authority may have 



ORGANIZATION OF THK KXKCUTIVK. 221 

been thought necessary, because no state is authorized 
to send its militia or armed men into any other state with- 
out the consent of that state into which they may be sent ; 
but it is also necessary to enable the proper officers of the 
army to assign the militia to such regiments, brigades, 
and divisions as a complete organization of the army may 
require, as all orders of any officer of the army or navy, 
lawful in character, would be regarded as being given by 
the president as commander-in-chief. 

Authority to require the opinion in writing from the 
head of executive departments greatly strengthens the 
president's control over the subdivisions of the executive 
department of the United States, he being the chief ex- 
ecutive officer thereof. 

But it is of greater importance to have advisers to con- 
sult with in private conversations on questions of great 
interest to the welfare of the United States. So, the 
cabinet officers, each of whom is at the head of some 
bureau under the jurisdiction of the president, constitute 
his advisers. The president has a right to call them to- 
gether at will, and confer with them in a body about any 
matter relating to state affairs, and may require any 
one of them to give his opinion in writing about any 
matter relating to his bureau. 

The authority of the president, with the advice and 
by the consent of the senate, to make treaties, appoint 
ambassadors and other public ministers and consuls to 
foreign nations, seems to be sufficiently guarded, though 
it was the cause of much contention during the time the 
constitution was before the- states for adoption, but the 
president can do nothing without the senate, and as 
the senators are the representatives of the several states 
in their organized capacity, that ought to be held as a 
sufficient guard against the mal-exercise of this power. 



222 CONSTITUTION OF THE UNITED STATES. 

But the duty imposed on the president to receive am- 
bassadors and other public ministers and consuls was so 
magnified by Mr. Washington, and his secretary of state, 
Mr. Hamilton, that it deserves more than a passing 
notice. 

It will be remembered that France aided the United 
States in winning their freedom and independence. And 
in 1793, ten years after the war of the revolution ended, 
France became involved in a state of war with nearly 
the whole of Europe, and the American people generally 
sympathized with her, particularly as she had adopted a 
republican form of government. There was danger of 
the citizens of the United States doing something that 
would involve the United States in hostilities to some of 
the enemies of France. 

To avoid all danger of a war being brought on by the 
conduct of indiscreet citizens, Mr. Washington, who 
was then president of the United States, issued his 
proclamation of neutrality ; though many of the best 
informed citizens thought that the treaty with France 
required the United States to aid that nation in its 
struggle to maintain its republican form of government, 
as well as being in strong sympathy with the new re- 
public. Consequently, that proclamation was highly 
censured and the president himself was not spared from 
their criticisms. 

The proclamation having been issued without consult- 
ing the senate, the senators felt their dignity had been 
overlooked by the president, and some of them openly 
condemned the issuing of said proclamation. The friends 
of France constituted a large per cent of the American 
people. 

So formidable was the opposition that Mr. Hamilton 
wrote a series of articles in defense of said proclama- 



ORGANIZATION OF TH£ EXKCUTIVK. 223 

tion, claiming that the president was authorized to in- 
terpret treaties, and to decide whether to receive ambas- 
sadors, ministers, consuls, etc., which letters were pub- 
lished as an addenda to the Federalist, under the title of 
Pacijicus. 

Mr. James Madison answered each of Mr. Hamilton's 
letters, which were published in the same book (the 
Federalist) under the title of Helvidius. 

The authority of the president of the United States to 
exercise his discretion in receiving or refusing to receive 
ambassadors, ministers and consuls was discussed by 
those two great men with distinguished ability and mi- 
nuteness. Although Mr. Hamilton thought it necessary 
to shift his position during that discussion, it by no 
means shows Mr. Madison to have been his intellectual 
superior, for Mr. Hamilton not only exhibited great 
mental power, but a wonderful elasticity and ready grasp 
of resources in debate, but he was hampered by his pre- 
vious letters in defense of the constitution, while it was 
before the states for adoption, which were frequently 
quoted on him by Mr. Madison. 

Mr. Hamilton, drawing from a difference in the lan- 
guage used in the delegation of the legislative authority 
from that used in the delegation of the executive au- 
thority — the language used in the former being : ' ' all 
legislative power herein granted shall be vested in a con- 
gress, ' ' etc. , while the language used in the latter is : 
' ' The executive power shall be vested in a president, ' ' etc. — 
claimed that by this language all executive authority was 
granted to the president, that therefore the president was 
vested with all executive powers that belonged to the 
executive authority of nations, except such powers as 
may have been taken away from him by express lim- 
itation in the constitution ; and contended that under 



224 CONSTITUTION OF THE UNITED STATKS. 

the law every limitation must be construed strictly. He 
admitted that the power to declare war, and the power 
to grant letters of marque and reprisal, being expressly 
granted to congress, the president was, by that delega- 
tion to congress, ousted of that executive authority. 
And the concurrence of the senate being required to all 
treaties and the appointment of public officers by express 
provision of the constitution, he admitted, deprived the 
president of that executive power also, but he claimed 
that these powers were taken out of the grant of powers 
to the executive, and that they must be strictly con- 
strued. His own language is : 

' ' The general doctrine of our constitution then is that 
the executive power of the nation is vested in the presi- 
dent ; subject only to the exceptions and qualifications 
which are expressed in the instrument. 

' ' Two of these have already been noticed : the partici- 
pation of the senate in the appointment of officers, and 
the making of treaties. 

' ' A third remains to be mentioned : the right of the 
legislature to declare war and grant letters of marque 
and reprisal. 

"With these exceptions, the executive power of the 
United States is completely lodged in the president. . ... 
It may be said that this inference would be just if the power 
of declaring war had not been vested in the legislature ; 
but that this power naturally includes the right of judg- 
ing whether the nation is or is not under obligations to 
make war. 

' ' The answer is, that however true this position may 
be, it will not follow that the executive is in any case ex- 
cluded from a similar right of judging in the execution 
of its functions. ' ' 

Passing by the claim of Mr. Hamilton as to the pow- 



ORGANIZATION OF THK EXECUTIVE. 225 

ers that inherently belong to the executive, for the pres- 
ent (which, however, is disputed on high authority), he 
has fallen into several other grave errors, that should be 
noticed. 

The United States was always limited to one of the 
grand objects of government, therefore is not and never 
was a complete government ; all of the powers they have 
or can have must be delegated to them. 

The reservation of sovereignty in the people of the re- 
spective states made the United States a federal republic, 
and prevented them from constituting a nation in a tech- 
nical sense. 

Now, granting Mr. Hamilton's interpretation of the 
language, il The executive power shall be vested in a presi- 
dent, ' ' etc. What executive power was vested in the pres- 
ident ? Of course, it must be the executive power of the 
United States, and can not possibly be any other execu- 
tive power ; then what belongs to the United States ? 
There can be but one answer to that inquiry, which is, 
nothing but delegated powers, as defined by the constitu- 
tion ; hence, the delegation of the executive power simply 
means, the executive powers granted by the constitution 
shall be vested in a president. Therefore, although the 
power to declare war, make treaties, appoint ambassa- 
dors, etc., may belong to a royal prince, it by no means 
follows that these powers were vested in the president of 
the United States by the language quoted, and there is 
no practical difference between the language in the 
delegation of the executive powers and the delegation of 
the legislative powers. 

The grant of authority to the congress to declare war 
necessarily carries with it absolute and exclusive dis- 
cretion to decide when the United States has a cause for 



226 CONSTITUTION OF THE UNITED STATES. 

going to war, and that discretion can not reside in the 
president and in the congress at the same time. 

After the congress shall have declared war, the con- 
gress has no further control over it, except to vote the 
means to carry it on ; the power of making treaties being 
vested in the president and the senate, they alone can end 
the war. However, the congress may, by refusing to 
vote the means of carrying it on, force the president and 
the senate to conclude the war by a treaty of peace, and 
every treaty is declared to be a part of the supreme law 
of the United States by the constitution. 

But Mr. Hamilton further says : ' ' Hence, in the in- 
stance stated, treaties can only be made by the president 
and senate jointly ; but their activity may be continued 
or suspended by the president alone. ' ' 

It being the duty of the president to see that all laws 
are faithfully executed, and all treaties being expressly 
declared to be part of the supreme law of the land by the 
constitution, how can the president suspend it without 
violating his oath of office and laying himself liable to 
impeachment ? 

If we concede the authority of the president to give 
greater activity to one treaty than another or to suspend 
a treaty, we must concede to him the power of giving 
cause of war and of bringing it on ; for, what can be a 
more fruitful cause of war than bad faith in keeping or 
complying with treaties ? By a faithless compliance with 
a treaty, the nation having rights under it may by re- 
taliation so act as to force the congress to declare war 
practically brought on by the president. 

Mr. Hamilton, in advocating the adoption of the con- 
stitution by the states, said : 

" However proper or safe it may be in a government 
where the executive magistrate is a hereditary monarch 
to commit to him the entire power of making treaties, it 



ORGANIZATION OF THE EXECUTIVE. 227 

would be utterly unsafe and improper to intrust that 
power to an executive magistrate of four years' duration. 
It has been remarked, upon another occasion, and the 
remark is unquestionably just, that a hereditary mon- 
arch, though often the oppressor of his people, has per- 
sonally too much at stake in the government to be in any 
material danger of being corrupted by foreign powers ; 
but that a man raised from the station of private citizen 
to the rank of chief magistrate, possessed of but a 
slender or moderate fortune, looking forward to a period 
not very remote, when he may probably be obliged 
to return to the station from which he was taken, 
might sometimes be under temptation to sacrifice duty to 
interest, which it would require superlative virtue to 
withstand. An avaricious man might be tempted to 
betray the interests of the states for the acquisition of 
wealth. An ambitious man might make his own ag- 
grandisement by the aid of a foreign power, the price of 
his treachery to his constituents. The history of human 
conduct does not warrant that exalted opinion of human 
virtue, which would make it wise in a nation to commit 
interests of so delicate and momentous a kind as those 
which covxern its intercourse with the rest of the world, to 
the sole disposal of a magistrate created and circum- 
stanced as would be a president of the United States. ' ' * 

If the president can suspend treaties or give greater 
activity to some than to others, what will prevent him 
from using that power to increase his fortune or gratify- 
ing his ambitions by the aid of foreign powers should he 
be inclined to do so ? 

Mr. Hamilton claims that the authority of the pres- 
ident to receive ambassadors and other public min- 



Letter 75, p. 344, Federalist. 



228 CONSTITUTION OF THE UNITED STATES. 

isters and officers, vests the president with a discretion 
to receive them or not when defending President Wash- 
ington' s neutrality proclamation, but when he was anxious 
for the states to adopt the constitution, he thought differ- 
ently. He said : 

" The president is also to be authorized to receive am- 
bassadors and other public ministers. This, though it 
has been a rich theme of declamation, is more a matter of 
dignity than of authority. It is a circumstance which 
will be without consequence in the administration of the 
government, and it is far more convenient that it should 
be arranged in this manner than that there should be a 
necessity for convening the legislature or one of its 
branches upon every arrival of a foreign minister, 
though it were merely to take the place of a departed 
predecessor. ' ' * 

The authority to receive ambassadors and other public 
ministers makes the president the usher or an officer to 
receive strangers at the door and to conduct them into 
the court, and to point out to them their proper places, 
which court consists of the president combined with the 
senate ; and until the president convenes himself with 
the senate, he has no more authority than an ordinary 
bailiff or sheriff has to render judgment in any case be- 
fore the court. 

The authority to make wars must be lodged in but one 
department of the government to prevent the clashing of 
judgment, and to secure the energetic participation of the 
whole people, and of every department in conducting the 
same. For if the president can make war and the con- 
gress can also make war, they will each seek to go ahead 
of the other in bringing on a popular war, and the de- 

* Letter 69, p. 319, Federalist. 



ORGANIZATION OF THE EXECUTIVE. 229 

partment left behind may, out of a spirit of jealousy, de- 
cry the war as not necessary or proper, and without actu- 
ally opposing it, may to some extent weaken the power 
of prosecuting it with vigor and the full force of the na- 
tion ; and it is more than likely the president would act 
during the adjournment of the congress in bringing on a 
popular war, and fail to call the congress together, in 
extraordinary session, until the war had begun, and he 
would then convene the congress to vote the means of 
carrying it on, or he might by withholding information 
on a plea of prudential reasons, prevent the congress 
from taking steps before the end of the session, and then 
bring on a war. 

No one can dispute the authority of congress to declare 
war by express letter of the constitution, and the only 
claim that can be made that the president has power to 
bring on a war, must be based on his duty to act as usher in 
receiving ambassadors and other public ministers ; though 
the exaltation of the office and powers of the president 
has advanced so far as to create some doubt whether he 
is authorized to bring on a war without a formal declara- 
tion thereof by the congress. No one can dispute the 
exclusive authority of the congress to grant letters of 
marque and reprisal ; to raise and maintain armies ; to 
provide and maintain a navy ; to make rules for the gov- 
ernment of the land and naval forces ; to provide for call- 
ing forth the militia. Consequently, the congress alone 
is the power to determine first, whether war shall be de- 
clared ; second, whether after a war has begun, it shall 
be prosecuted with vigor ; therefore, the greatest har- 
mony should prevail between the executive and legisla- 
tive departments, but if one disputes the authority of the 
other and refuses to respect its claims or authority, they 
each are provided with a check on the other. 

The country may suffer by such disputes, but it can 



230 CONSTITUTION OF THE UNITED STATES. 

not suffer more by them than it would by letting either of 
those departments usurp powers that were never granted 
to it, to be used as a precedent for further encroachments 
on the reserved rights of the people on which to base a 
revolution. 

While the congress alone is authorized to declare war, 
and to put the country on a war basis, and to declare 
martial law, the president and senate conjointly must 
agree to any treaty of peace ; for neither the president 
alone, nor the senate alone, can form a treaty to end a 
war after it has been declared ; but the president and the 
senate must concur in concluding to end a war by form- 
ing a treaty of peace. 

Authority to appoint ambassadors, consuls and other 
public ministers, through whom this country communi- 
cates with every other nation, and through whom treaties 
are generally conducted, under the direction of the presi- 
dent, is also intrusted to the president and the senate, not 
to the president alone, nor to the senate alone, but to the 
concurring action of both. 

The ambassadors, consuls, and other public ministers, 
constitute officers and agents of the United States 
whenever they are properly appointed and commissioned ; 
not agents and officers of the president or the senate, and 
every act or agreement they may enter into or perform 
officially, are acts and agreements of the United States, 
when properly ratified, and bind the United States, not 
the president or senate, further than they are bound as de- 
partments or agents of the United States, to observe 
them as a part of the supreme law of the land. 

Going back to the duty of the president to receive 
ambassadors and other public ministers. If imposing on 
the president that duty has the effect of vesting him with 
authority to refuse to receive them, then all of the fore- 
going checks and limitations on his power were practi- 



ORGANIZATION OF THE EXECUTIVE. 23 1 

cally nullified thereby ; to illustrate take the case dis- 
cussed between Messrs. Hamilton and Madison. France 
had thrown off its regal government and constructed 
a republic in its stead, and the United States had its 
representative at the court of the republic, at the time 
President Washington issued and published his neutrality 
proclamation. Mr. Madison demonstrates the fallacy of 
Mr. Hamilton's argument by giving a supposed procla- 
mation to suit the case, which is as follows : 

( ' Whereas a treaty was conducted on day of 

between the United States and the French nation, 
through the kingly government which was then the 
organ of its will, and whereas the said nation hath ex- 
ercised its right (no wise abridged by the said treaty) of 
changing the organs of its will by abolishing the said 
kingly government as inconsistent with the rights and 
happiness of the people, and establishing a republican 
government in lieu thereof, as most favorable to the pub- 
lic happiness and best suited to the genius of a people 
become sensible of their rights and ashamed of their 
chains, and whereas by the Constitution of the United 
States the executive is authorized to receive ambassadors, 
other public ministers and consuls, and whereas a public 
minister duly appointed and commissioned by the new 
republic of France hath arrived and presented himself to 
the executive, in order to be received in his proper char- 
acter, now be it known that by virtue of said right 
vested in the executive to receive ambassadors, other 
public ministers and consuls, and of the rights included 
therein, the executive hath refused to receive the said 
minister from said republic, and hath thereby caused the 
activity and operation of all treaties with the French 
nation, hitherto in force as the supreme law of the land, to 
be suspended until the executive, by taking off the said 



232 CONSTITUTION OF THE UNITED STATES. 

suspension, shall receive the same ; of which all persons 
concerned are to take notice.* 

This piece of satire shows the absurdity of the claims 
of that power for the executive. 

But, as absurd as Mr. Madison made that claim of 
power in the executive to appear, Mr. Washington de- 
clining to make another race for president, deprived the 
people of an opportunity to express themselves, about that 
assumption of power. 

The neutrality message by which that power was as- 
sumed was obeyed, and no public condemnation by a 
vote of the whole people was had, although many openly 
and publicly condemned it. That assumption of power 
stands as a precedent to be followed by other presidents, 
which has not only been followed but expanded until it 
is a matter of doubt whether the war making power re- 
sides exclusively in the congress or not. 

Of course the executive authority can not exercise any 
war making power as long as the congress continues 
alive to its duties and trusts, and ordinarily mankind 
loves power and is slow to surrender it ; and with this 
natural inclination the congress could be safely intrusted 
with the war making power as long as no other conflict- 
ing forces can be made to bear on the members of the 
congress. 

But unfortunately there are three forces that are 
utilized by the executive to overcome the pride of the 
legislative powers of the congress. 

The first and most potent of these forces was made by 
the congress itself, which arises out of the patronage of 
the president, or his power of appointing to ministerial 
offices persons in every congressional district in the 



Letter No. 3, page 447, Federalist. 



ORGANIZATION OF THE) EXECUTIVE. 233 

union, and by appointing persons to fill those offices 
who are recommended by the members whose votes the 
president may desire to secure, such members may be 
induced to vote on measures before the congress as the 
president dictates. 

The second of said forces, arises out of a natural dis- 
inclination to make, what appears to be an unsuccessful 
contest with the president of their own party, by those 
members who remain true to their constituents, however 
severely they may condemn such proceedings ; and should 
a considerable number of the members have been influ- 
enced by the president's giving them the use of his 
power to appoint their friends to office, it will always ap- 
pear at least doubtful whether a conviction could be ac- 
complished, with the strongest outside evidence, par- 
ticularly as a criminal intent must be shown to over- 
come the custom of appointing on the recommendation 
of the members of each house of the congress. 

The third of said forces arises out of a natural incli- 
nation to avoid doing any apparently unnecessary labor, 
or taking any trouble on themselves, and to avoid the 
same the congress has attempted to vest the executive 
department and its horde of ministerial agents with pow- 
ers and trusts that were reposed exclusively in the per- 
sonal judgment and discretion of the congress while in 
actual session. 

Among said attempts to delegate its powers the con- 
gress passed an act to vest the secretary of the treasury 
with power to issue and sell bonds of the United States 
whenever he should find it necessary to do so, to enable 
him to redeem the legal tender notes of the United States. 

The part of said act relating to vesting the secretary 
of the treasury with that discretionary power to issue 
and sell bonds reads as follows : 

"And to enable the secretary of the treasury to pre- 



234 CONSTITUTION OF THE UNITED STATES. 

pare and provide for the redemption in this act author- 
ized or required, he is authorized to use any surplus 
revenue, from time to time, in the treasury not other- 
v/ise appropriated, and to issue, sell and dispose of at 
not less than par, in coin, either of the description of 
bonds of the United States described in the act of con- 
gress approved July fourteenth, eighteen hundred and 
seventy, entitled ' an act to authorize the refunding of 
the national debt/ with like qualities, privileges, and 
exemptions to the extent necessary to carry this act into 
full effect, and to use the proceeds thereof for the pur- 
poses aforesaid." . . . 

Under this act, during the administration of President 
Cleveland, bonds to the extent of two hundred and sixty- 
two millions of dollars were issued and sold by the then 
secretary of the treasury ; although his authority to 
issue and sell bonds was limited to one object or pur- 
pose, yet if he had authority to issue and sell the 
bonds of the United States for any purpose, the pre- 
sumption of the law is that they were issued for that 
purpose, and therefore legal and binding, whatever 
may have been the real purpose of issuing and selling 
them. 

If the secretary of the treasury can be vested with au- 
thority to issue and sell bonds of the United States at 
his discretion as to when they may be needed, when the 
bonds are sold and the proceeds thereof is in the treas- 
ury, he may use the money they sold for, in the same 
way that any other money in the treasury can be used, 
even to the maintaining of an army contrary to the will 
of the congress. 

With a doubt as to whether the power of making wars 
is in the president or in the congress, coupled with the 
power to raise money to carry on a war, through his sec- 
retary of the treasury, the president can soon settle the 



ORGANIZATION OF THE EXECUTIVE. 235 

question as to where the war making power resides, by 
usurping that power to himself. 

But if any one provision of the constitution is placed 
beyond all equivocation and doubt, it is that the con- 
gress alone is authorized to put the United States in 
debt or to appropriate any money that belongs to the 
United States, and the congress must exercise its own 
discretion and judgment in each case, and it has no au- 
thority to delegate this discretion and judgment to any 
other tribunal or agent ; therefore, that part of said 
act that attempts to vest the secretary of the treasury 
with the discretion of determining when to issue said 
bonds, and to what extent to issue and sell them, is clearly 
unconstitutional and void. 

I admit that the congress must issue and sell what- 
ever bonds of the United States they desire to sell, 
through some sort of an agency, and that the sec- 
retary of the treasury is the most appropriate agent 
the congress can adopt for that purpose ; however, 
not only the character of the bonds must be specified, 
but the number or extent to which and the time when 
they are to be issued and sold, must be fixed by the con- 
gress itself. If authority to determine when to issue 
and sell them, or authority to determine the extent they 
may be issued and sold, be reposed in any other tribunal, 
officer or person, than the congress itself, the issue and 
sale of them would be unconstitutional and void. 



236 CONSTITUTION OF THE UNITED STATES. 

CHAPTER VIII. 

ORGANIZATION OF THE JUDICIARY DEPARTMENT. 



Article III. 

Sec. 1. " The judicial power of the United States shall 
be vested in one supreme court and in such inferior 
courts as the congress may from time to time ordain and 
establish. The judges, both of the supreme and inferior 
courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services a compen- 
sation which shall not be diminished during their con- 
tinuance in office. ' ' 

Sec. 2. "The judicial power shall extend to all 
cases in law and equity, arising under this constitu- 
tion, the laws of the United States, and the treaties 
made, or which shall be made, under their authority ; 
to all cases affecting ambassadors, other public min- 
isters and consuls ; to all cases of admiralty and 
maritime jurisdiction ; to controversies to which the 
United States shall be a party ; to controversies between 
two or more states ; between a state and citizens of 
another state ; between citizens of different states ; be- 
tween citizens of the same state, claiming lands under 
grants of different states, and between a state or the 
citizens thereof, and foreign states, citizens or subjects. 
In all cases affecting ambassadors, other public ministers 
and consuls, and those in which a state shall be a party, 
the supreme court shall have original jurisdiction. In 
all the other cases before mentioned, the supreme court 
shall have appellate jurisdiction, both as to law and fact,, 



ORGANIZATION OF JUDICIARY DEPARTMENT. 237 

with such exceptions and under such regulations as the 
congress shall make. 

' ' The trial of all crimes, except in cases of impeach- 
ment, shall be by jury ; and such trial shall be held in 
the state where the said crime shall have been com- 
mitted ; but when not committed within any state, the 
trial shall be at such place or places as the congress may 
have by law directed. ' ' 

Sec. 3. "Treason against the United States shall con- 
sist only in levying war against them, or in adhering to 
their enemies, giving them aid and comfort. No person 
shall be convicted of treason unless on the testimony of 
two witnesses to the same overt act, or on confession in 
open court. 

' ' The congress shall have power to declare the punish- 
ment of treason, but no attainder of treason shall work 
corruption of blood, or forfeiture except during the life 
of the person attainted. ' ' 

The acts necessary to constitute treason having been 
so plainly denned, and the provision that the testimony 
of two witnesses to the same overt act, or a confession in 
open court, to convict any one of treason, no great evil 
can arise out of authorizing the congress to prescribe the 
punishment thereof. The congress is, however, limited 
in prescribing the punishment of treason by the last para- 
graph, for any punishment that would include the work- 
ing of the corruption of blood that might be provided by 
congress, would be absolutely void, and ought to be ; for, 
by the corruption of the blood of those convicted not only 
inflicts punishment on the offender, but also punishes his 
family. Nor can the congress make the forfeiture of 
the estate of any one convicted of treason extend beyond 
the lifetime of the offender. 

"The judicial power of the United States," as used in 
the first section of this article, includes the whole judi- 



238 CONSTITUTION OF THE UNITED STATES. 

cial authority vested in either of the departments of 
the United States, for all powers to be used for the 
United States were granted to the three several depart- 
ments respectively, and neither department, either singly 
or as a whole, has any power except such as was dele- 
gated by the constitution. "The judicial powers of the 
United States" include the powers granted, and no more, 
and the judges of the courts of the United States should 
always ascertain whether the power has been granted be- 
fore taking jurisdiction of every case or exercising judi- 
cial control over it. 

The second section of this article defines the subjects, 
interests, and rights over which the supreme court is to 
have jurisdiction, which appears to include even* sub- 
ject that is in any way connected with the powers granted 
or duties imposed on the union or any of the depart- 
ments or officers thereof, yet that jurisdiction is necessarily 
limited by the limitations imposed on the several grants 
of powers to the respective departments or to the union 
as a whole ; notably among this class of limitations are 
actions arising under acts of congress. Before con- 
sidering such cases the court should ascertain whether 
the congress was authorized to pass the act : and if it be 
found that the congress had no authority to enact the 
Law under which the claim arises, the federal court would 
not have jurisdiction of the case, and should dismiss it 
and remit the parties to the action to a state court hav- 
ing jurisdiction of the common law and the remedies 
thereof. 

There is nothing in the language of this article that ex- 
presses exclusive jurisdiction of any of the subjects named 
therein ; but from the character of all cases between two 
or more states, the jurisdiction ought to lie exclusively 
in the federal judiciary*, for the judiciary of neither of 
the states that are parties to the action would be regarded 



ORGANIZATION OF JUDICIARY DEPARTMENT. 239 

by the other state or states, parties thereto, as prepared 
to render impartial justice between them. However, any 
state may sue any other state, and has its option to bring 
its suit in the supreme court of the United States di- 
rectly or in the state court. 

Article 6 of the constitution conclusively shows that 
the jurisdiction of the federal judiciary is not exclusive 
as to any subject committed to it, unless as to controver- 
sies between states and those relating to ambassadors. 

Said Article 6 is as follows: "This constitution, and 
the laws of the United States which shall be made in pur- 
suance thereof ; and all treaties made, or which shall be 
made, under the authority of the United States, shall be 
the supreme law of the land ; and the judges in every 
state shall be bound thereby, any thing in the consti- 
tution or laws of any state to the contrary notwith- 
standing. ' ' 

It will be seen that the judges of the states are men- 
tioned in their official capacity, and they are to be bound 
in their official capacity, and are therefore vested with a 
judicial discretion to ascertain and determine what act of 
the congress shall have been made in pursuance of the con- 
stitution, and whether that which is claimed to be a 
treaty was made "under the authority of the United 
States," and, to determine either of these questions, they 
must necessarily have authority to inquire into the mean- 
ing of the constitution in relation thereto. 

But, as the supreme court has appellate jurisdiction 
of all cases named in said second section (except the 
cases of which it has original jurisdiction), whether 
the case originates in a state court or in an inferior 
federal court. The supreme court necessarily con- 
stitutes the only tribunal of the United States vested 
with authority to finally interpret the constitution and 



240 CONSTITUTION OF THE UNITED STATES. 

laws of the United States. The convention itself did not 
intend to vest it with that authority, for, when the con- 
stitution was turned over to the committee on style, it 
was as follows : 

Art. 11, Sec. 1. "The judicial power of the United 
States shall be vested in one supreme court, and in such 
inferior courts as shall, when necessary, from time to 
time, be constituted by the legislature of the United 
States." 

Sec. 2. Provides for paying the judges. 

Sec. 3. "The jurisdiction of the supreme court shall 
extend to all cases arising under laws passed by the leg- 
islature of the United States ; to all cases affecting ambas- 
sadors, other public ministers and consuls ; to the trial of 
impeachment of officers of the United States ; to all cases 
of admiralty and maritime jurisdiction ; to controversies 
between two or more states, except such as shall regard 
territory or jurisdiction ; between a state and citizens of 
another state ; between citizens of different states ; and 
between a state or citizens thereof and foreign states, 
citizens or subjects. In cases of impeachment, cases 
affecting ambassadors, other public ministers and consuls, 
and those in which a state shall be a party, this jurisdic- 
tion shall be original. In all the other cases before men- 
tioned, it shall be appellate, with such exceptions and 
under such regulations as the legislature shall make. 
The legislature may assign any part of the jurisdiction 
above mentioned (except the trial of the president of the 
United States), in the manner, and under the limitations, 
which it shall think proper, to such inferior courts as it 
shall constitute from time to time. ' ' * 

It will be observed that this draft of the constitution 



* Elliott's Debates, vol. I, pp. 228, 229. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 24 1 

did not vest the judiciary with jurisdiction of cases aris- 
ing under the constitution. 

But, when it was put into the hands of the committee 
on style, it was changed. The Hon. Gouverneur Morris 
claims the credit of changing it. He says in a letter to 
the Hon. Timothy Pickering, written from Morrisania, 
December 22, 1814 : 

' ' My Dear Sir — What can a history of the constitu- 
tion avail toward interpreting its provisions ? This must 
be done by comparing the plain import of the words with 
the general tenor and object of the instrument. That 
instrument was written by the fingers which write this 
letter. Having rejected redundant and equivocal terms, 
I believed it to be as clear as our language would permit, 
excepting, nevertheless, a part of what relates to the 
judiciary. On that subject, conflicting opinions had 
been maintained with so much professional astuteness 
that it became necessary to select phrases which, ex- 
pressing my own notions, would not alarm others, nor 
shock their self-love ; and, to the best of my recollection, 
this was the only part which passed without cavil. 

"But, after all, what does it signify that men should 
have a written constitution, containing unequivocal pro- 
visions and limitations ? The legislative lion will not be 
entangled in the meshes of a logical net. The legislature 
will always make the power which it wishes to exercise, 
unless it be so organized as to contain within itself the 
sufficient check. Attempting to restrain it from outrage, 
by other means, will only render it more outrageous. The 
idea of binding legislators by oath is puerile. Having 
sworn to exercise the power granted according to their 
true intent and meaning, they will, when they feel a 
desire to go farther, avoid the shame, if not the guilt, of 
perjury, by swearing the true intent and meaning to be, 



242 CONSTITUTION OF THE UNITED STATES. 

according to their comprehension, that which suits their 
purpose. ' ' * 

If the legislative department can not be entangled 
in logical nets, how can a judiciary clothed with auto- 
cratic powers be expected to be controlled thereby ? 

This letter shows that the able writer of it greatly de- 
sired to change the organization of the judiciary depart- 
ment so as to make it agree with his own notion, against 
which conflicting opinions had been maintained with pro- 
fessional astuteness in the convention, consequently the 
change was so skillfully drafted as to escape the attention 
of those who opposed his notions with such professional 
astuteness, for if their attention had been drawn to 
the changes, they could with the same professional 
astuteness defeat the ingrafting of his notions in the ju- 
diciary department, though, as an appointee of the con- 
vention, to correct the style only, he was in duty bound to 
have called the attention of the convention to any and 
every change made in any part of the instrument by his 
committee ; but, having admitted in this letter that he 
was willing to ingraft his notions in the organization of 
the judiciary by phrases that "would not alarm others 
nor shock their self-love," his moral sentiment was no 
spur to the discharge of that duty, and he was a man of 
too much mental capacity to invite the attention of the 
convention to the changes made, as it would not only 
defeat his scheme, but expose his shame, and thereby 
destroy his ability to lead the convention into any of his 
measures. 

What changes the Hon. Mr. Morris so earnestly de- 
sired to ingraft on the judiciary, he does not state. But 
by comparing the draft of the constitution as it was 
when it was put into the hands of the committee on 

* Elliott's Debates, vol. 1, pp. 506, 507. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 243 

style with what it was when returned to the convention, 
the desired change must have been to give jurisdiction in 
cases arising under the constitution. The draft of the 
constitution as agreed to by the committee on detail was 
reported to the convention on the 6th of August, and 
was debated by the committee of the whole and the con- 
vention until the 12th of September, during which time 
some minor changes were made by the convention itself, 
among which was that of making the senate a court to 
try impeachment of the officers of the United States. 

But the important changes made by the committee, to 
which I desire to call attention in this connection, is, 
that of extending jurisdiction of the judiciary " to all cases 
. . . arising under the constitution" which, from the pro- 
ceedings in the convention, as well as the original draft 
of the constitution as it was when turned over to the 
committee on style, must have been the change necessary 
to put that instrument in accord with Hon. G. Morris's 
notions referred to in his letter to the Hon. Mr. Pickering. 
But whatever the change so earnestly desired may have 
been, the Hon. Mr. Morris doubtless believed it was 
necessary to perfect the character of the government, else 
he would not have given publicity to his double dealing 
with his associates in the convention. 

The committee on style was appointed by ballot on the 
8th of September, consisting of Messrs. Johnson, Hamil- 
ton, G. Morris, Madison and King, and they reported 
back to the convention on the 12th of said month ; and 
on the 17th thereof, the engrossed constitution was read 
and adopted by the convention and ordered reported to 
the congress. 

Letters of Mr. Hamilton (published in the Federalist), 
in defense of the constitution while it was before the 
states for adoption, show that he, in glowing terms, ap- 



244 CONSTITUTION OF THE UNITED STATES. 

proved of the organization of the judiciary in every par- 
ticular as changed and adopted by the convention. 

He also approved of dispensing with the English rule 
of removing the judges by address of the legislative de- 
partment, and urged as a reason thereof that the judiciary 
should be entirely free from the control of either of the 
other departments to enable it to protect the people 
against oppressions from either of them, and to protect 
the weak against the strong. 

It is true, had the judges been made removable by the 
legislative, it would have weakened the judiciary, and it 
may have required a clear case of usurpation by the con- 
gress to induce the courts to decide any act to be uncon- 
stitutional. 

Judge Tucker, in notes to his edition of Blackstone's 
Commentaries, also expressed his approval of giving the 
judiciary jurisdiction of cases arising under the constitu- 
tion, and of dispensing with the English rule of remov- 
ing the judges by address of the legislative department. 

Judge Tucker, Mr. Hamilton and Mr. G. Morris were 
each learned lawyers of recognized ability ; but as patri- 
ots, it probably did not occur to them, that exclusive au- 
thority to interpret the constitution carried with it the 
power to change the constitution at will, which, coupled 
with life tenure in office, tended to make aristrocrats of 
the judges, and cause them to lean to an aristocracy in 
their rulings and construction of the powers under the 
constitution. 

The history of governments shows that the judiciary 
is as much inclined to augment the powers of their gov- 
ernment as the officers of any other department thereof. 

But that is a natural weakness of human nature, for 
the greater the powers of the government, the greater the 
powers of the judiciary must be ; and the greater their 
powers, the more resplendent their official position is 



ORGANIZATION OF JUDICIARY DEPARTMENT. 245 

made, and it is quite natural for them to grasp after 
power and position, 

Without intending any reflection on the personal char- 
acter of the judges of the supreme court of the United 
States, for they have always been gentlemen of such 
high character, and recognized patriotism, that any re- 
flection on them, would recoil on their assailant, yet the 
history of adjudications in the United States shows that 
they were not strangers to this human weakness, and that 
on several occasions they have shown a disposition to 
augment the powers of the United States, which will be 
pointed out in a subsequent part of this chapter. 

While the language of the second section of article 
three seems to vest the supreme court with exclusive 
jurisdiction to interpret the constitution, it must be con- 
ceded that this language is the work of the skillful pen of 
the Hon. Gouverneur Morris. That seeming jurisdic- 
tion is in conflict with the organization of the three 
grand departments, legislative, executive and judiciary. 
And is in conflict with article six of the constitution. 

The United States being merely a name to indicate 
the several states united, and not a government to be 
divided into departments, as is the case with the states ; 
and as shown by the preamble to the constitution, the 
constitution alone was ordained and established by the 
convention. Under that instrument no power was granted 
to the United States in that name ; but all powers 
that were granted by that instrument were granted 
directly to each department separately. By the sixth 
article the officials of each department are required to 
take an oath to support the constitution, and the judges 
of the courts of the several states are also required to take 
an oath to support the constitution, and as judicial officers 



246 CONSTITUTION OF THE UNITED STATES. 

are bound to enforce the constitution ; the laws made in 
pursuance thereof, and all treaties made and those to be 
made under authority of the United States. 

The several departments of the United States and the 
judiciary of the several states being equally bound to 
support the constitution, they must be authorized to con- 
strue it. If the legislative and executive departments of 
the United States, and the judiciary of the several states, 
are bound to support the constitution as it may be in- 
terpreted by the supreme court, they may be required to 
support it in one way to-day, another to-morrow, and still 
a different way the day after to-morrow, even if contrary 
to their conscientious belief. 

The state judges being authorized to exercise a ju- 
dicial discretion, they are necessarily authorized to in- 
terpret the constitution in the administration of their 
judicial duties. Then, suppose the supreme court should 
decide that the constitution, rightly interpreted, author- 
izes the president to suspend the writ of habeas corpus, 
and the president should by proclamation attempt to sus- 
pend that writ, and a citizen of a state was in prison 
without a trial by due course of law, and a state judge 
should be called on to issue that writ, can there be a 
doubt of the duty of the state judge to issue it? Or, 
suppose the congress should by a bill of attainder 
deprive a citizen of a state of his right to hold the 
title to his property, and the supreme court should 
hold that a proper interpretation of the constitution au- 
thorized such bills of attainder, can there be a doubt in 
the mind of any one as to the duty of the state courts 
to refuse to enforce such attainders ? These, it is true, 
are strong cases, but it often requires strong cases to 
carry a principle clearly to the mind, and it will be shown 
by the adjudications of the supreme court that the use of 
strong cases to illustrate principles are at least excusable. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 247 

Furthermore, the fact that the powers granted by the 
constitution were vested in each department separately, 
clearly shows that the makers of the constitution in- 
tended that the three departments should be co-ordinate, 
and that each department should be supreme to the ex- 
tent of the powers vested in it, and that neither one 
should be superior to the other. If the legislative and 
executive departments are required to accept the consti- 
tution as it may be interpreted by the supreme court, they 
are, each, subordinate to that court, or that court may, 
by interpretation, change the powers of each of said de- 
partments. 

And whenever that court enlarges the powers of 
either the legislative or executive, or its own, such 
additional powers must be taken from the states, or 
from the people, or from the other departments, for 
they could not be taken from any other source ; and 
whenever that court takes away from either the legis- 
lative or executive departments any powers by interpre- 
tation, the powers so taken would fall back to the states 
or to the people, unless otherwise appropriated by that 
court. If the change made by the committee on style 
had the eifect of giving the supreme court exclusive juris- 
diction to interpret the constitution, that court was con- 
verted into an oligarchy instead of a co-ordinate de- 
partment of a republican form of government. Still 
the freedom of the states will be in the way of that 
department exercising its unlimited powers ; the gov- 
ernment must therefore be first converted into an em- 
pire, by breaking down the independence of the states 
and reducing them to provinces ; to do which, the aid of 
both the legislative and executive departments will be 
needed ; but as soon as the states can be reduced to 
provinces the supreme court can assert its unlimited 



248 CONSTITUTION OF THE UNITED STATES. 

authority over the legislative and executive departments 
with impunity. And our constitutional fathers gave us 
the most autocratic oligarchy the world has ever known, 
instead of the federal republic boasted of by American 
statesmen and politicians. 

This jurisdiction is too great and far reaching to be 
reposed in any human authority, except the sovereign 
people themselves. And Mr. Jefferson when a candidate 
for president in 1800; President Jackson while a candi- 
date for re-election to the office of president in 1832 ; and 
Mr. Lincoln while a candidate for president in i860 : each 
denied the supreme court was vested with that juris- 
diction. 

While the alien and sedition act of congress was 
never acted on by the whole court, enough of the 
judges of that court sustained the validity of it, while 
on the circuit court bench, to show that it would be sus- 
tained by the supreme court. And Mr. Jefferson 
denied the constitutionality of that act, which was dis- 
cussed as an issue in his election in 1800, and the people 
sustained Mr. Jefferson by electing him by a large 
majority. 

President Jackson during his first term vetoed what 
was known as the recharter of the United States bank, 
on the ground that the congress had no authority to 
charter banks, although the supreme court had decided 
the original charter thereof to be constitutional. Presi- 
dent Jackson contending that it was his duty to decide 
upon the constitutionality of the charter for himself, and 
refused to follow the interpretation of the supreme court ; 
and went before the people on that issue and they sus- 
tained him by electing him by a large majority. 

Mr. Iyincoln denied the validity of the decision of the 
supreme court in the celebrated case known as the Dred 
Scott case, in which that court held that negroes were 



ORGANIZATION OF JUDICIARY DEPARTMENT. 249 

not citizens, and could not be made such, so as to entitle 
them to the privileges and immunities of citizens in all 
of the states, and the people sustained him, by electing 
him by a large majority. 

But there being no provision of the constitution au- 
thorizing appeals of such cases to the people, the action 
of the people in neither of said cases amounted to any 
thing, except Mr. Lincoln's appeal, which resulted in 
manumitting slavery in the United States, and making 
native-born negroes wards of the United States and of 
the state wherein they reside, with the right to vote in 
elections, and to buy, own and pass the title to every 
character of property. 

As able and patriotic as the judges of the supreme 
court have always been, they have betrayed a disposi- 
tion to augment the powers of the judiciary by defining 
the character of the United States government and hold- 
ing the same to be vested with sovereign powers. While 
the preamble thereof shows that nothing was ordained or 
established except the constitution ; and the constitution 
shows that every power granted by it was granted 
directly to one or the other of the three departments, to- 
wit : legislative, executive and judiciary, and that no 
power was granted to the United States as a government, 
though specific duties were imposed on the states united, 
in that name ; hence, the United States government can 
not be sovereign in any sense whatever, but is simply an 
agent and representative of the several states in the 
union. 

Among the cases that court so held, are the cases of 
Chisholm v. the State of Georgia, decided in 1792 ;* that 
of Martin v. Hunter's Lessee ; f that of McCollough v. 
the State of Maryland;! that of Gibbons v. Ogden ; || 



* Reported in 2 Dall. 419. f 1 Wheat. 304. % 4 id. 316. || 9 id. 1. 



250 CONSTITUTION OF THE UNITED STATES. 

-and that of the Dartmouth College.* It is true, that 
court recognizes the right of the people to recover sover- 
eign control at any time ; but, as shown in the first 
chapter of this review, that right can not benefit the 
people, for, if the sovereignty is in the government, the 
government holds it as trustee, and is in duty bound to 
hold on to it, unless it be lawfully demanded, so that un- 
less the constitution provides for the exercise of that au- 
thority by the people without assigning any cause, a 
cause must be assigned to authorize the officials to sur- 
render it, and if the government is sovereign, it alone 
has the right to decide whether the assigned cause be 
well founded ; and any cause that could be assigned must 
involve the good faith of the government officials, as 
trustees thereof, and they would not be likely to admit 
their guilt. 

The decision of Chisholm v. The State of Georgia in 
1792, together with several other cases of similar charac- 
ter in the United States circuit courts, brought by for- 
eign creditors against different states, caused the eleventh 
article of amendment to the constitution to be adopted, 
which provides that the constitution shall not be so con- 
strued as to give to the federal courts jurisdiction of ac- 
tions against any state by citizens of another state, or by 
citizens or subjects of any foreign nation or state. 

Notwithstanding this amendment the supreme court did 
take jurisdiction of the action of McCulloch v. The State 
of Maryland, and on the theory that the government of 
the United States was sovereign, decided that the con- 
gress was authorized to charter banks as a necessary 
power to the sovereignty of the government of the United 
States, although no such authority could be found in the 
letter of the constitution. 



* 4 Wheat. 518. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 25 1 

Yet notwithstanding said eleventh amendment, the 
supreme court has uniformly taken jurisdiction of actions 
to prevent any state from amending or repealing a charter 
of a private corporation created by the state, on the 
ground that such charters are contracts between the state 
and the corporators, ever since the celebrated case of 
Dartmouth College, until the states relieved themselves 
of that interference by providing by general statutes or 
amendments to their respective constitutions, making 
such charters subject to repeal or amendment as a part of 
the contract indicated by the charter. 

Since the Ogden- Gibbon case, reported in 9th Wheaton, 
page 1, the federal courts have taken jurisdiction of cases 
relating to commerce between states, notwithstanding 
the fourth article of the constitution, which of itself 
regulates commerce and all intercourse between the states 
as the basis of the union, in such a clear and concise 
manner as to leave no room for the regulation of com- 
merce between the states by the congress, which has 
been shown in considering the delegation of authority to 
congress to regulate commerce with foreign nations and 
among the several states. 

The supreme court applies an act of congress, passed 
to enable the president to enforce the constitution in 
states standing in rebellion to the union and the constitu- 
tion by state legislative acts prohibiting the enforcement 
of the constitution therein, and the fugitive slave acts of 
congress ; to states in entire harmony and accord with 
the union and constitution, notably is the case of Neagle, 
of California. 

As this question has not been discussed elsewhere in 
this review, I will consider it fully here. This case arose 
in San Joaquin county, California, in 1889. Ex-Chief - 
justice Terry of the supreme court of that state took of- 
fense at the manner and ruling of Justice Field, of the 



252 CONSTITUTION OF THK UNITED STATES. 

supreme court of the United States, while sitting in the 
circuit court of the United States, in that state. And 
Justice Field conceiving it to be his duty to return to 
California to again aid in holding the circuit court of the 
United States, the attorney-general; fearing harm might 
overtake him (Field) at the hand of ex-Chief -justice 
Terry, telegraphed the United States marshal of that 
state to furnish a deputy to go with Justice Field to 
protect him, and Mr. Neagle was deputed for that pur- 
pose, being a fearless and resolute man. 

When ex- Chief -Justice Terry and Justice Field met in 
California, Neagle thinking the apprehended collision 
was about to take place, thereupon shot and killed ex- 
Chief- Justice Terry. The state authorities instituted 
proceedings to try him, but the circuit judge of the 
United States circuit court, embracing the northern dis- 
trict of that state, by writ of habeas corpus, took Neagle 
out of the custody of the state officials, and discharged 
him without a trial by jury. 

An appeal was taken by the state of California to the 
supreme court of the United States, and by a divided 
court, the ruling of the circuit judge on the writ of habeas 
corpus was sustained, Chief -Justice Fuller and Justice 
LaMar dissenting.* 

If the state of California had been in rebellion (as the 
states that passed acts against the enforcement of the 
fugitive slave laws were), and Neagle had been on mili- 
tary duty, and had committed that crime in the dis- 
charge of that duty, he could have been tried under the 
laws of the United States, and shielding him from a public 
fair trial under the state laws, would not have been so 
severe a blow against the safeguards of life, liberty and 
property. But the state of California was in absolute 

* 315 U. S. Reports, p. 1. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 253 

subordination to the United States at the time, and had 
full control of the police and peace laws of the state, and 
could have furnished better protection to Justice Field 
than the United States authorities could. The attorney- 
general of the United States, however, must have thought 
otherwise, else he would not have ordered the United States 
marshal to disregard and nullify the rightful police au- 
thority of the State of California. In the execution of 
that usurped authority, the crime was committed. 

The supreme court admitted that there was no authority 
to try said Neagle by a jury under the laws of the United 
States. But a majority of said court claimed that he 
could be tried without a jury by the federal courts. It 
is provided by the federal constitution that : 

" In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the state and district wherein the crime shall 
have been committed. . . . ' ' * 

The majority of the court may have acted on the 
theory that this provision applies alone to the accused, 
and that no right is guaranteed to society by it. 

In every prosecution there must be two parties, the 
representative of society as prosecutor, and the accused 
who is being prosecuted, and each party is entitled to a 
speedy public trial, by an impartial jury of the state and' 
district wherein the crime was committed. If this pro- 
vision applies to the accused alone, no guilty man would 
ever be ready to demand that right, and no guilty man 
would ever be tried and punished. 

The only protection society can possibly derive from 
any government, must necessarily arise out of the power 
to punish those who commit crimes ; for it is by punish- 
ing criminals that others are deterred from committing 



* Art. 6 of Amendment to Con. 



254 CONSTITUTION OF THE UNITED STATES. 

similar crimes, so that society has as much interest irL 
the just and impartial execution of the criminal law as 
any criminal can possibly have. 

That ruling not only lays the foundation for depriving 
any state from protecting the society thereof, by execut- 
ing the penal and criminal laws of the state, but it es- 
tablishes a precedent for shielding a favored class from 
responsibility to the penal and criminal laws of the state, 
and thereby establishes grades of society in the states 
more obnoxious to the spirit of freemen than the dis- 
tinction between the patricians and plebeians of Rome, or 
the distinction between the aristocracy and the common 
people of England. 

The claim that Neagle was obeying orders of the presi- 
dent in going with Justice Field to protect him, concedes 
that he was in the act of violating that provision of the 
constitution that requires the United States to guarantee 
to the states republican forms of government and the ex- 
ercise of their police powers. 

If the president is authorized to send civil officers into 
a state, in entire subordination to the United States, to 
take the life of an honored citizen, against whom no 
charge has been made, and to shield such officers from a 
public fair trial for his crime, the safeguards incorporated 
in the constitution for the protection of life, liberty, and 
property amount to nothing but a snare and delusion. 

If the president has this power, what would prevent 
him from sending an officer into any state to take the 
life of anj^ formidable adversary, and shield the culprit, 
who committed the crime, from a trial ? 

Equally as dangerous an invasion of the safeguards to 
life, liberty, and property, incorporated in the constitu- 
tion, arises out of the modern use of injunction in appre- 
hended trespass cases by the federal courts. 

Injunctions are but aids to courts of equity in protect- 



ORGANIZATION OF JUDICIARY DBPARTMKNT. 255 

ing the particular property or property rights involved in 
the action ; as they are merely aids in chancery practice, 
they can never be used to give courts of equity jurisdic- 
tion ; the court of equity must have jurisdiction inde- 
pendently of any injunction to authorize it to issue a writ 
of injunction. Having jurisdiction of the action, it may 
issue a writ of injunction only to protect the property in- 
volved in the action. 

The great commentator, Mr. Blackstone, after summing 
up the jurisdiction of courts of chancery, says : 

" This is the business of our courts of equity, which, 
however, are only conversant with matters of property. 
For the freedom of our constitution will not permit that 
in criminal cases a power should be lodged in any judge 
to construe the law otherwise than according to the letter. 
This caution, while it admirably protects the public lib- 
erty, can never bear hard on individuals." . . .* 

The same author again says : 

"Not only the substantial part or judicial decisions of 
the law, but also the formal part or method of proceed- 
ing, cannot be altered but by parliament ; for, if once 
those outworks were demolished, there would be an inlet 
to all manner of innovation in the body of the law 
itself." . . -t 

Life, liberty and property are better guarded in the 
United States, because the outworks, as Mr. Blackstone 
calls them, or the safeguards (as they are called by the 
supreme court in the Milliken case), are incorporated in 
the constitution, and cannot be changed by any depart- 
ment of the United States. 

' ' No person shall be held to answer for a capital or 
otherwise infamous crime, unless. on a presentment or in- 
dictment of a grand jury." . . . 



* Bl. Com., vol. 1, p. 92. f Id., p. 142. 



256 CONSTITUTION OF THE UNITED STATES. 

" Nor be deprived of life, liberty, or property, without 
due process of law. . . . Nor be twice put in 
jeopardy of bis life and limb. . . . 

"In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial by an impartial jury 
of the state and district wherein the crime shall have 
been committed, which district shall have been previously 
ascertained by law. ' ' * 

' ' No bill of attainder or ex post facto law shall be 
passed. ' ' f 

' ' In suits at common law, where the value in contro- 
versy exceeds twenty dollars, the right of trial by jury 
shall be preserved. ' ' % 

The right of trial by jury applies to every one accused 
of crime who is not attached to the army or navy or militia 
in actual service. 

" Neither the president nor the congress nor the judi- 
ciary can disturb any one of the safeguards of civil 
liberty incorporated in the constitution, except so far as 
the right to suspend in certain cases the privileges of the 
writ of habeas corpus." || 

It may be said with equal force that neither the presi- 
dent nor the congress nor the judiciary can deny to either 
party to a case at common law, where the value in con- 
troversy exceeds twenty dollars, a trial by jury. 

Trespass is an indictable offense and a violation of the 
criminal law under the common law ; still the party 
injured may bring a civil action for the injury he may 
have suffered by reason of the trespass ; but the party 
sued would be entitled to have the action tried by a jury. 

Trespass being an indictable offense punishable by im- 



* Amendments to Constitution, 5 and 6. 

t Art. 1, sec. 9, Con. % Art. 7 of Amendment. 

|| Ex parte Milliken, 4 Wall., p. 2. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 257 

prisonment, it comes under the classification of "other- 
wise i?ifamous crimes," which no one can be held to 
answer for unless upon information or indictment of a 
grand jury. 

But suppose the trespassers be proceeded against in a 
civil action, and without regard to its being an indict- 
able offense, still it is an action at common law, and the 
defendant would be entitled to a trial by jury if the 
value sued for exceeded twenty dollars ; and courts of 
equity could not take jurisdiction of the trespass for that 
reason alone ; and as courts of equity are only conversant 
with property and property rights, while every action of 
trespass is a punishment in damages against the person 
of the offender for violating the penal laws of the coun- 
try, for if there was no law against the act done by the 
defendant his acts would not amount to a trespass, and 
no damages could be adjudged against him. 

But as some of the states have enacted statutes author- 
izing injunctions in cases of trespass to realty to prevent 
waste or injury to the land sued for, while the suit is 
pending, it may be contended that the federal courts 
could avail themselves of such state statutes and order 
writs of injunction to issue. 

The states cannot give jurisdiction to the federal 
courts, though the states may create legal rights which 
the federal courts may take hold and dispose of, pro- 
vided they are of a character to pass under the jurisdic- 
tion of the federal courts as prescribed by the constitu- 
tion. 

That class of cases that belonged to the exclusive 
jurisdiction of courts of law, at the time the constitution 
was made and adopted, must remain of exclusive juris- 
diction in courts of law, and neither the congress nor any 
legislature can change it. 

' ' In suits at common law, where the value in con- 



258 CONSTITUTION OF THE UNITED STATES. 

troversy shall exceed twenty dollars, the right of trial 
by jury shall be preserved ; and no fact tried by a jury 
shall be otherwise re-examined in any court of the 
United States than according to the rules of the common 
law."* 

The rules of the common law existing at that time must 
be taken as the rules thereof referred to. For if the rules 
of the common law could be changed from what they 
were recognized to be at that time, that article of amend- 
ment would not have provided any limitation, and its 
adoption would amount to an idle act ; hence the dis- 
tinction between the rules of the common law and equity 
practice existing at that time must continue to prevail, 
for the purposes of interpreting that article of amendment. 

Courts of equity in England never had jurisdiction 
of criminal or penal cases ; nor of actions sounding in 
damages. They could, however, always require the 
parties to an action to pay over the rents and profits of 
property involved in the action, which was sometimes 
erroneously spoken of as damages. But in actions sound- 
ing in damages, the cause of action arises out of a wrong- 
ful act or acts, for which the wrongdoer ma}' be punished, 
by paying in damages, the amount of the injury suffered 
by the party suing for the same. But no such suit could 
be brought until after the law had been violated, and the 
wrongful acts complained of had been fully enacted, 
and it would be farcical to grant a writ of injunction 
to restrain one from doing that which he had already 
done. And to grant that writ to prevent the wrongful 
acts from being committed, before any act violating the 
law had been committed, must be based alone on an ap- 
prehension that the party enjoined would commit the 
dreaded trespass. Under that state of case no cause of 



* Seventh Article of Amendment to the Constitution. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 259 

action, either in equity, or at law, would exist ; but not- 
withstanding the total failure of a cause of action, the in- 
junction would not only deprive the person enjoined of his 
personal liberty, but of the free use of property he had in 
possession claiming as his own without a trial, and with- 
out due course of law as guaranteed by the constitution. 

Furthermore, the fine for contempt in violating an in- 
junction is a criminal judgment. The supreme court 
says: 

' ' Contempt of court is a specific criminal offense. The 
imposition of the fine was a judgment in a criminal case. 
That part of the decree is as distinct from the residue as 
if it were a judgment upon an indictment for perjury 
committed in a deposition read at the hearing. This 
court can not take cognizance of a criminal case only 
upon a certificate of division of opinion. " . . . * 

This was a case wherein an action was pending by the 
steamship company to enforce a contract entered into for 
the lease of a certain part of the wharf of the city of 
New Orleans, in the circuit court of the United States, 
and the mayor of that city caused an action to be insti- 
tuted in the state court to settle the same matters that 
were involved in the case in the United States court. 
The offense having been completely committed, the fine 
was clearly a judgment in a criminal case, and the mayor 
was entitled to an indictment or presentment by a grand 
jury and a verdict of a petit jury. 

There is, however, a class of contempts that the courts 
of justice must have jurisdiction to dispose of without an 
indictment of a grand jury or the verdict of a petit jury. 
This class of contempts has been provided against by act 
of congress in the following language : 



20th Wall. 387, New Orleans v. Steamship Co. 



260 CONSTITUTION OF THE UNITED STATES. 

Sec. 725. " The said courts shall have power to impose 
and administer all necessary oaths, and to punish, by fine 
or imprisonment, at the discretion of the court, contempts 
of their authority ; provided, that such power to punish 
contempts shall not be construed to extend to any cases 
except misbehavior of any person in their presence, or so 
near thereto as to obstruct the administration of justice, 
the misbehavior of any of the ofiicers of said courts in 
their official transactions, and the disobedience or resist- 
ance by any such officer, or by any party, juror, witness, 
or other person, to any lawful writ, process, order, rule, 
decree, or command of the said court." * 

If this provision of congress be construed to apply to 
present and continuing contempts committed in the pres- 
ence of the court, or contempts of jurors, witnesses, and 
the ofiicers of the court in refusing to obey the rules 
and orders of court during its sesssions, the entering of 
fines or orders of imprisonment until the offender con- 
sents to purge himself of the contempt, is the only 
means of maintaining the courts in the discharge of 
their respective duties within their jurisdiction. Such 
acts of contempt would amount to assaults on the dignity 
and proceedings of the court, the judge, by imposing a 
fine or ordering the offender to prison until he purge him- 
self of the contempt and surrender to every lawful order 
of the court, would simply be maintaining the court 
by the only means within the power of the court to pro- 
tect itself. This power of self-protection is inherent in 
the courts, and must be a part of the institution of every 
court ; furthermore, such contempts are always committed 
within the personal knowledge of the judge, and need 
no evidence. 



* Revised Statutes U. S., Sec. 725. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 26 1 

But, if said act of congress be construed to apply to 
contempts that have already been completely committed, 
unless committed in the presence of the court, that 
act invades the execution of the criminal and penal laws, 
and is in conflict with the safeguards of the constitution 
for the protection of life, liberty and property ; there- 
fore, they must be held to be unconstitutional. 

Injunctions as aids to courts of equity, in equity cases 
are regulated by positive law. But, as they are fordidden 
by the constitution of England as well as by the constitution 
of the United States, in penal or criminal cases, or in civil 
cases sounding in damages, they can not be regulated by 
any positive law ; therefore, whenever they are issued in 
this class of cases, the judge who grants them necessarily 
makes the law for granting them with the expectation of 
executing the law of his own making, and must necessarily 
reserve to himself the right to prescribe the punishment for 
disobeying his injunction, which must always be held back 
until after the offense of disobedience has been heard by 
him, thereby making the punishment ex post facto. 
Therefore, injunctions in this class of cases, not only ab- 
negates the safeguards of the constitution for the protection 
of life, liberty and property, but they disregard and nullify 
the greatest and most valuable principle of the common law, 
and of the English civilization ; that of separating the 
law making jurisdiction from the law executing jurisdic- 
tion. Which is the primary principle of both individual 
and popular liberty. It is the fountain from which pop- 
ular government under the English civilization flows. 
Without this fountain, every channel that nourishes 
free government would dry up, and all would become 
slaves to the magistrate having jurisdiction to make 
and execute whatever laws his whims may prompt. 
So that the purer the fountain is kept, the freer the 



262 CONSTITUTION OF THE) UNITED STATES. 

people are bound to continue. And, the several safe- 
guards to life, liberty and property being branches flow- 
ing from this fountain to irrigate and nourish civil lib- 
erty, they must be kept pure also to maintain the free- 
dom of the people. These principles can not be too crit- 
ically or clearly guarded by the great body of the people 
themselves. 

The objections to injunctions in this class of cases ap- 
ply with equal force to punishments without a verdict of 
a jury, in trespass to property in the custody of a re- 
ceiver of a court in an equity case. And in cases with a 
broad-spread injunction, commonly called blanket injunc- 
tions, in suits properly brought in equity. 

These encroachments on the safeguards of life, liberty 
and property are the outgrowth of the theory that the 
supreme court is vested with exclusive jurisdiction to in- 
terpret the constitution, which necessarily includes power 
to change the constitution by interpretation. And there 
are but few if any who can resist the intoxicating influ- 
ence of such oligarchic powers. Hence, these encroach- 
ments on the rights of the states and of the people, and 
on the several departments of the United States, by the 
judiciary, are ascribable to a natural weakness of man- 
kind under a bad system, and not to a bad motive on the 
part of the judges of the supreme court. 

No government can be stable or rest on fixed constitu- 
tional principles as long as it can be changed by the judi- 
ciary thereof, by interpretation ; for the judges them- 
selves are liable to change, and no judge or set of judges 
can hold office always, even where they are selected for 
life, as all must die sooner or later, and whenever a new 
man is installed in office as judge he carries his political 
notions with him, and they will, to some extent, give 
coloring to his judicial views ; and as every case arising 



ORGANIZATION OF JUDICIARY DEPARTMENT. 263 

under the constitution or an act of congress in the United 
States necessarily partakes of a political character, the 
constitution will be changed from time to time to make it 
correspond with the political views of the judges who 
may be on the bench at the time the court is called on to 
interpret that instrument. 

The supreme court upon two notable occasions so 
changed its rulings as to sustain the views of one po- 
litical party over the views of the opposing political 
party. One of said cases related to treasury notes, 
commonly called greenbacks, in which that court first 
decided that the legal-tender feature was unconstitu- 
tional, and in a short time thereafter the legal- tender fea- 
ture was held to be constitutional and valid. The other 
case related to the power of congress to lay an income 
tax. The court had adhered to the power of congress 
to lay that tax on excise principles for over a half cen- 
tury, and at one session of that court held the income 
tax valid, but granted a rehearing and re-argument, and 
at the next session of the court overruled its former 
ruling, and held that income tax to be a direct tax, 
and that it must be laid by apportioning it among the 
states according to enumerations under acts of con- 
gress.* 

I do not complain of that court exercising the inherent 
right of all courts to overrule its former decisions, to cor- 
rect its own errors ; nor do I intend to intimate an opin- 
ion as to which ruling was correct, the first or second, in 
said cases, but refer to these two cases out of quite a 
number because they are probably the most public cases 
that have been overruled by that court, wherein any of 
the provisions of the constitution have been changed. 



Pollock v. Loan, etc., Co., 157 U. S. 429. 



264 CONSTITUTION OF THE UNITED STATES. 

Courts ought always to correct their own errors, when- 
ever they discover them, without hesitation ; but no 
court has, or ought to have, authority to change the su- 
preme law of the land, even for the purpose of correct- 
ing its errors, or for any other purpose : though courts 
may develop new principles of the common law, pro- 
vided such new principles do not conflict with the 
letter of the fundamental principles of freedom and the 
safeguards of life, liberty and property, under the or- 
ganic law. 

The constitution is the only authority for the existence 
of either of the departments of the United States ; it 
was by that instrument each of them was ordained, and 
neither one of them is authorized to exercise any power 
not expressly granted to it by that instrument, and that 
instrument expressly reserves to the people of the states 
the right to alter or amend the same at will.* 

This article five shows a compact between the people 
of the states ; but neither the United States, nor either 
of the departments thereof, nor any officer thereof, can 
possibly have been parties to that compact, for neither 
one of them had any existence until the compact was 
completed and ratified, and every power granted by the 
constitution to either of the departments or officers of the 
United States, was a gratuity, and may be revoked at 
will by those who granted them. 

But if exclusive authority to interpret the grant of 
powers by the constitution be vested in either or all of 
the three several departments, the people of the states are 
excluded from exercising that authority, and they can 
not alter or amend that instrument without the assent of 
the tribunal having exclusive authority to interpret the 

* Art. 5, Con. 



ORGANIZATION OF JUDICIARY DEPARTMENT. 265 

same, and the sovereignty would necessarily reside in 
that authority and not in the people. 

All judicial powers, as well all other powers of gov- 
ernment, emanate from the people, and they have as 
much right to regulate their judiciary organization as 
they have to regulate their legislative or executive or- 
ganizations. 

"The original power of judicature, by the fundamental 
principles of society is lodged in the society at large. ' ' * 

And the people must retain exclusive authority to in- 
terpret for themselves every grant of power they may 
make, or they will be compelled to surrender their sov- 
ereignty and freedom to the tribunal they vest with ex- 
clusive authority to interpret the same. 

If the constitution had not been changed by the com- 
mittee on style, not only each department of the United 
States, but the courts of last resort of the states, having 
appellate jurisdiction of actions in the states, would have 
been vested with equal authority to interpret the constitu- 
tion ; but as neither of them had a right to bind any other 
department or court to its own interpretation, the courts 
of last resort of the several states, and the supreme 
court of the United States, would have tried to come to- 
gether, and to agree to the true and proper meaning of 
every provision in the constitution, as was intended by 
the convention that ordained it, and as the people of the 
states understood them when they were ratified by con- 
ventions of the states, which would have given the bene- 
fit of all of the judiciary authority, both state and fed- 
eral, to interpret that instrument. 

It is true that the courts of last resort of the several 
states are vested with appellate jurisdiction of all cases 
arising under the constitution of their respective states ; 



* Bl. Com., vol. 1, p. 267. 



266 CONSTITUTION OF THE UNITED STATES. 

but the constitutions of the respective states are limited 
by that of the United States, and to the extent of the 
limitations named therein, the state constitutions are 
subordinate to that of the United States. The judges 
of the several states are elected or appointed for lim- 
ited terms, and are removable by address of the legis- 
lative department thereof, hence, should the judges of 
any state betray an inclination to disregard the reserved 
powers of the people, the people would defeat their re- 
election or re-appointment, and should their rulings be 
deemed dangerous to their liberties, the people then 
could elect a legislature that would remove them by ad- 
dress. 

But some may share the Hon. Governeur Morris' fears 
of the ' ' legislative lion ' ' of the states ; those fears, how- 
ever, are groundless, for the congress is authorized to 
enact laws relating to every subject of government vested 
in either of the departments of the United States, so 
that in every case where a state legislature should at- 
tempt to invade any authority of the United States by 
state legislation, the congress could check it by an act of 
congress on the subject, which would give the supreme 
court of the United States appellate jurisdiction of all 
cases under such acts. 

All laws that may be enacted must be in conformity 
with the constitution, else the acts would be no law 
at all, and each department must constitute a part of each 
of the other two departments, and a part of the government 
of the United States, and each is vested with separate 
functions ; hence, the judiciary must have jurisdiction of 
all laws enacted by the congress, as all acts of the con- 
gress are acts of the government as agent of the sover- 
eign authority. But the constitution was ordained by a 
higher authority, and is the charter of each department 
and of the government itself, and is above the govern- 



ORGANIZATION OF JUDICIARY DEPARTMENT. 267 

merit and all connected therewith, and to give to either 
department thereof, or to all of them combined, sole au- 
authority to interpret the constitution, necessarily in- 
volves authority to change or to destroy the same, which 
was never contemplated by the makers of that instru- 
ment. 

By the provisions of article five of the constitution, 
any mischief that may be done by the supreme court or 
either of the departments, may be repaired by a conven- 
tion of the United States, and the ratification thereof by 
conventions in three-fourths of the states. 

Or, if Justice Story correctly interprets said article 
five in his ' ' Commentaries on the Constitution, ' ' any 
mischief the judiciary may do may be remedied by 
amendments proposed by the congress and ratified by the 
legislatures of three-fourths of the states. 



268 CONSTITUTION OF THE UNITED STATES. 



CHAPTER IX. 

INTERCOURSE AND TRADE BETWEEN THE STATES, ANI> 
POWER OF CONGRESS TO ADMIT NEW STATES. 



Article IV. 
Section i. 

Par. i . ' ' Full faith and credit shall be given in each 
state to the public acts, records and judicial proceedings 
of every other state. And the congress may by general 
laws prescribe the manner in which such acts, records 
and proceedings shall be proved and the effect thereof. ' ' 

The union of the states would be incomplete and ex- 
tremely cumbersome without faith and credit being given 
by the authorities of each state to the public acts, records 
and judicial proceedings of every other state in the union ; 
the first clause of this paragraph may, therefore, be said 
to constitute one of the most valuable provisions of the 
constitution in support of the union. 

But the second clause tends to weaken the union, and 
it can not be enforced without depriving the states of the 
right to exercise eminent domain over the territory within 
their respective borders ; and to prescribe their own rules 
of evidence, to prove their public acts, records and judi- 
cial proceedings ; though the congress acting on this latter 
provision did at an early day enact a general law on the 
subject. Yet the rules of evidence, and the evidence 
required by the respective states to establish the title to 
real estate or prove their public acts, records and pro- 



INTERCOURSE AND TRADE, ETC. 269 

ceedings of the courts thereof, are recognized by the 
courts of the several states and by the courts of the 
United States, as the paramount law on the subject, not- 
withstanding the provision of the constitution making all 
laws passed in pursuance of the constitution the supreme 
law of the land. 

However, this clause does not require, nor is it neces- 
sary for the congress to pass any law on the subject to 
aid in putting the constitution into operation ; therefore, 
while the congress is authorized to enact a general law 
on the subject, such a law would not be in pursuance of 
the constitution, and under a strict construction is not the 
supreme law. This clause was not in the draft of the con- 
stitution as it was when turned over to the committee on 
style, and after it was reported back to the convention 
by that committee, the journal of the convention fails to 
show any discussion or mention of it in any way. Why 
that committee added this clause to this section can not 
be known and must be left to conjecture ; for it does not 
improve the style and must remain a dead letter, or must 
destroy the right of the people of the respective states, to 
manage their domestic affairs. 

Section 2. 

Par. 1 . ' ' The citizens of each state shall be entitled to 
all the privileges and immunities of citizens in the sev- 
eral states. ' ' 

Par. 2. ' 'A person charged in any state with treason, 
felony or other crime, who shall flee from justice and be 
found in another state, shall, on demand of the executive 
authority of the state from which he fled, be delivered 
up, to be removed to the state having jurisdiction of the 
crime. 



270 CONSTITUTION OF THE UNITED STATES. 

Par. 3. ' ' No person held to service or labor in one 
state under the laws thereof escaping into another, shall 
in consequence of any law or regulation therein be dis- 
charged from such service or labor ; but shall be de- 
livered up on claim of the party to whom such service or 
labor may be due." 

As said in discussing the power to regulate commerce, 
the first paragraph of this section contains an important 
provision of the compact of the union between the states. 
For unless the citizens of each state could go into other 
states to trade, and be civilly treated while there, and be 
authorized to buy and sell property of every description 
on equal terms with the citizens, and hold, own and 
transmit the title thereof on the same terms, there could 
be no union of the states. 

It will be observed that this paragraph does not re- 
quire the states to extend to the citizens of the other 
states equal rights with its own citizens, but only requires 
the states to extend to citizens of the other states the 
same privileges and immunities extended to its own citi- 
zens ; consequently, the citizens of sister states may do 
all things in any state that the citizens may do, except to 
vote and hold ofhces therein. 

The second paragraph, providing for the capture and 
return of those who are charged with treason, felony, or 
other crime, is a part of the first, and necessary to the 
maintenance of the union, and to enable each state not 
only to protect its own citizens against lawlessness, but 
to protect the citizens of sister states. 

Section 3. 
Par. 1 . ' * New states may be admitted by the congress 
into this union ; but no new state shall be formed or 
erected within the jurisdiction of any other state ; nor 



INTERCOURSE AND TRADE, ETC. 27 1 

any state be formed by trie junction of two or more 
states, or parts of states, without the consent of the legis- 
lature of the states concerned, as well as of the congress." 

Par. 2. " The congress shall have power to dispose of 
and make all needful rules and regulations respecting the 
territory or other property belonging to the United 
States ; and nothing in this constitution shall be so con- 
strued as to prejudice any claims of the United States, or 
of any particular state. ' ' 

To give to this section the broad meaning the language 
indicates, makes it conflict with other provisions of the 
constitution, and imbues it with a latent ambiguity, to 
be explained by other provisions of the constitution and 
the proceedings in the convention relating thereto and 
the history of the settlement of the colonies and their 
charters. 

The preamble to the constitution shows that this union 
is to consist of American states, or, as expressed therein, 
1 ' United States of America. ' ' 

Section four of article four requires the United States 
to guarantee to each state a republican form of govern- 
ment, and no new state can be admitted on any other 
terms than on full and complete equality ; therefore no 
new state can be admitted unless it has a republican form 
of government. These two conditions are so plainly 
expressed that they can not be disputed. 

But the third condition has been made somewhat ob- 
scure by the decision of the supreme court in the Dred 
Scott case (in which that court in the course of its argu- 
ment intimated that the congress probably had authority 
to naturalize Indians of the various tribes or nations) ; 
this third qualification, therefore, may be said to be 
ambiguous ; and its ambiguity may be explained by the 
proceeding of the convention and the relation of the citi- 



272 CONSTITUTION OF THB UNITKD STATKS. 

zens and inhabitants of the several states to their re- 
spective states under state laws. However, the purpose 
of the supreme court in that case was to show that the 
African negroes were incapable of being admitted into 
the family of sovereign people on equal terms, jurisdic- 
tion and powers with the white people, and it did not 
take into full consideration the status of the Indian 
nations and inhabitants thereof to the states and the 
union. 

But the court did say in that case that : 

' ' The words ' people of the United States ' and ' citi- 
zens ' are synonymous terms. They both describe the 
political body who, according to our republican institu- 
tions, form the sovereignty, and who hold the power 
and conduct the government through their representatives. 
They are what we familiarly call the ' sovereign people, ' 
and every citizen is one of this people, and a constituent 
member of this sovereignty." * 

' ' Every person and every class and description of per- 
sons, who were at the time of the adoption of the con- 
stitution recognized as citizens in the several states, 
became also citizens of this new political body ; but none 
other ; it was formed by them and for them and their 
posterity, but for no one else.f 

By the fifth section of the ninth article of the con- 
federation each state was required to furnish its quota of 
militia in proportion to the white inhabitants thereof 
only. 

The naturalization act passed by the congress in 1790 
authorized the naturalization of aliens being free white 
persons only. And many of the members of the con- 
gress that passed that naturalization act had been mem- 



19th Howard, p. 404. f 19th Howard, p. 406. 



INTERCOURSE AND TRADE, ETC. 273 

bers of the convention that framed the constitution, and 
were among our ablest statesmen and lawyers. * 

Therefore that naturalization act is entitled to great 
respect, as a contemporaneous interpretation of the con- 
stitution as to what class of people were entitled to be 
taken into the family of sovereign rulers of the United 
States. But as strong as this evidence is, we need not 
stop with it alone. 

Before the formation of the more perfect union by 
which the people of the states were taken into it, as well 
as the political organization of the states, most of the 
states had laws prohibiting white people from marrying 
negroes, Indians or mulattoes ; though a few of the states 
had omitted to include Indians in their laws relating to 
marriage. 

Indians, negroes and mulattoes, whether slave or free, 
being excluded from the militia force of the states, and 
being prohibited from intermarrying with the white peo- 
ple, they could not have constituted any part of the sov- 
ereign people, who ordained and established the con- 
stitution, or nation, of the United States of America; 
but it has been suggested that the negroes are now 
citizens of the United States, and of the state wherein 
they reside. These suggestions come from those who 
have not closely examined into the intent and meaning of 
the fourteenth and fifteenth amendments to the constitu- 
tion. 

The first section of the fourteenth amendment simply 
declares that, "all persons born or naturalized in the 
United States and subject to the jurisdiction thereof are 
citizens of the United States, and of the state wherein 
they reside. ' ' 

But the second section thereof concedes that declara- 



* 19th Howard, p. 406. 



274 CONSTITUTION OF THE) UNITED STATES. 

tion to be untrue by offering a reward to the states to 
permit the persons indicated the right to vote in certain 
elections, among which the right to vote for delegates to 
conventions was not named. 

If the negroes had been made equal sovereign citizens, 
by that amendment, with the white people, they would 
have a legal right to aspire to the hand in marriage of 
the highest lady in the land, and no law could be passed 
by any state to deny them that right ; no amendment to 
the constitution, that would open the parlors of the white 
people to the equal approach and entrance of the negro 
race, would have been ratified by the states ; it may, 
therefore, be assumed that the draftsmen of that amend- 
ment intentionally avoided making the negroes sovereign 
citizens. No one can be a citizen of the United States 
unless he is a citizen of one of the states, for that would 
destroy the fitness of the United States to execute its 
trusts in protecting the citizens of all the states alike. 
If the United States could have citizens independently of 
those of the states, it would not be competent to repre- 
sent the states, for to the extent of the interest of the 
citizens of the United States, its interest would be hostile 
to that of the state ; but as this question will be fully dis- 
cussed in reviewing the fourteenth and fifteenth amend- 
ments to the constitution, further notice of it is deferred 
until then. 

The fourth condition or limitation on the power of con- 
gress to admit new states, viz., that they must be con- 
tiguous to the body of American states, requires a more 
minute and extensive examination into the action of the 
convention, and of the states, and of circumstances relating 
to the granting of that authority to the congress. 

As has been said heretofore in this review, every na- 
tion must have a people associated together as one peo- 



INTERCOURSE) AND TRADE, ETC. 275 

pie, or body politic, or national family (as they are some- 
times called) , and that body politic, or national family, 
must own and hold exclusive possession of a certain and 
known part of the globe, and have a political policy or 
government of some sort. 

Hence, every nation consists of a certain people associ- 
ated as one people, owning a certain part of the globe. 
The territory they have appropriated to their exclusive 
use is a necessary part of the nation, and it is utterly im- 
possible to pass the sovereign title to the territory, with- 
out also passing sovereign control over the inhabitants 
thereof in the same deed or act of cession, unless the sov- 
ereign control over the inhabitants should be reserved by 
the deed of cession ; and no nation would be willing to 
buy the territory on such terms. In the treaties ceding 
the Floridas and Louisiana province to the United States, 
it was agreed in each treaty that the inhabitants should 
be taken into the national family of the United States, 
but the sovereign control over the inhabitants passed by 
the treaty in each case to the United States ; in one case 
the sovereignty over them was ceded by the kingdom of 
Spain, and in the other by the republic of France, without 
consulting the wishes of the inhabitants conveyed. 

No people who authorize their government to trade 
them off, by the sale or transfer of the territory they in- 
habit, can possibly be free, nor can any people who au- 
thorize their government to change the race or charac- 
ter of the people who constitute the body politic of the 
nation, either by allowing a lower grade or race of 
people to take part in managing the affairs, or by pur- 
chasing them as a part of a territory, particularly if this 
lower grade or race so purchased are to be permitted to 
take part in the management of the nation, as equals with 
the former national family or body politic thereof. 



276 CONSTITUTION OF THK UNITED STATES. 

While many nations authorize the purchase and owner- 
ship of provinces, with the right of sovereignty over the 
inhabitants thereof, I do not know of a single nation 
whose government has authority to dispose of any part 
of the territory that constitutes the nation proper, or any 
part of the class of people who constitute the body poli- 
tic of the nation ; or that has any authority to change 
the character of the people composing the body politic, 
either by extending the rights and privileges of the na- 
tional family to a lower grade of people, or by taking a 
lower grade of people into the national family by pur- 
chasing the territory they inhabit. However, the right 
of franchise has often been extended to the same race of 
people, and the right of citizenship was extended in 
Rome, but to the same race of people. The only attempt 
to degrade the national family that I know of is chargeable 
to the United States, in its attempting to elevate the na- 
tive-born of African descent — which proved a failure — 
and the more recent attempt to raise the low grade or 
race of people inhabiting the Philippine and other 
islands — which is as likely to prove a failure. Whether 
the United States" has a sovereign government or not is 
of little consequence, so far as this question extends. 

Since the explosion of the doctrine of the divine right 
of kings, we are forced to look to the people as the 
original source of power, and since man is recognized, 
by the whole of Christendom, to have been endowed by 
the great Ruler of the Universe with free agency, and as 
free agency and sovereignty are equivalent to each other, 
man must be recognized as a sovereign by gift of nature ; 
so that whenever sovereignty is lodged in a government, 
it must be so lodged by authority of the people. And 
as no government can exist without an association of 
people into one body or national family, the body politic 



INTERCOURSE AND TRADE, ETC. 277 

of the nation, or national family, must continuously suc- 
cor and feed the sovereignty as lodged in the govern- 
ment ; for they can no more part with their sovereignty 
than they can with their free agency, though they may, 
by voluntary engagement, oblige themselves by compact 
to maintain sovereignty in their government by a con- 
tinual flow of their respective sovereignty to the govern- 
ment. Hence every government that is vested with sov- 
ereignty derives it by compact between the members of 
the body politic, consisting of the people who constitute 
the nation, whether the government thereof was formed 
by compact or the result of growth. Authority in the 
government to destroy or to change the body politic 
from which it must continue to draw its sovereign au- 
thority, involves authority to destroy itself, or to change 
its own character without consulting the people engaged 
in feeding and keeping it alive ; for when the body poli- 
tic that gives it succor and life is changed or destroyed, the 
government must cease to exist, unless it be built anew. 
The sovereign authority of England is lodged with the 
parliament and king of that realm ; but they would not 
dare to interfere with the body politic of that kingdom. 
Should the parliament and king of that nation undertake 
to extend to Canada, or any other province of that na- 
tion, equal representation in the British parliament, with 
the right to vote on questions involving the policy of 
that kingdom, it would be denounced as revolutionary and 
void, and the king forced to prorogue that parliament and 
call another. Inasmuch as such an undertaking would 
be the exercise of rights inalienable from the people, they 
could not have been granted, and should be held by the 
people of the kingdom as unconstitutional. 

When they take into consideration the principles an- 
nounced by the great Declaration of Independence, the 



278 CONSTITUTION OF THK UNITED STATES. 

fact that no government for the United States was or- 
dained by the constitution, but in lieu thereof, three sep- 
arate agents, to-wit, the legislative, executive and judici- 
ary departments, that the legislatures of two-thirds of the 
states may demand a federal convention to propose amend- 
ments to the constitution, and when any amendments pro- 
posed by that convention shall be ratified by conventions 
in three- fourths of the states, they are to become the con- 
stitution on that subject, all logical reasoners will be forced 
to the conclusion that the sovereignty of the United States 
resides in the people of the states. If it is in the people 
of the states, they alone have the right to determine who 
shall be taken into the body politic and become members 
of the national family. 

There is no authority in the letter of the constitution 
that allows the congress or the president to buy territory, 
or to sell territory, except to emigrants and settlers, and 
in sales to emigrants and settlers the sovereign title is 
never passed ; not only is the eminent domain retained, 
but the purchaser becomes subject to the sovereignty of 
the nation. While as has been shown, every sale of ter- 
ritory by which the sovereign title passes, sovereign con- 
trol over the inhabitants thereof also passes. Power to 
buy territory in the United States, if it exist, must, there- 
fore, be drawn alone from implication. 

Is it not strange that any citizen of the United States 
would be willing to draw a power by implication, that at 
once makes him a slave to his government, that not only 
denies him the right to choose his own associates, to con- 
stitute the body politic or national family, but lays him 
liable to be sold as a part of the territory he may inhabit ; 
for the right to buy necessarily includes the right to 
sell? 

But it is claimed by some, that the United States 






INTERCOURSE AND TRADE, ETC. 279 

did buy the province of Louisiana. The facts are, the 
United States held the superior title, in trust, to that 
province, and it was cheaper to buy out France's posses- 
sion of it, than to go to war at that time for the posses- 
sion thereof. 

The status of that province, together with the history 
of the title of the United States to it, and the claim of 
France to it will incontrovertibly sustain my contention 
that nothing passed to the United States by what is 
known as the Louisiana purchase, except the actual pos- 
session of it. 

As the evident object of England in planting her col- 
onies in this country, was to appropriate the vacant and 
unclaimed part of the continent, the boundary given to 
the three colonies, viz., Virginia, New England and the 
grant to the Earl of Clarendon and others, included the 
whole of North America between Canada and the Flori- 
das, being thought to extend from 31 ° to 48 ° north lati- 
tude. The charter to Virginia was amended in 1606, and 
made to extend two hundred miles north of, and two 
hundred miles south of Point Comfort in Virginia, and to 
extend across the continent the same width. 

The second company, by amended charter of 1620, 
was made to extend from 40 ° to 48 ° north latitude, and 
to extend across the continent — in the language of said 
amendment, " to extend from sea to sea." 

The charter to the Earl of Clarendon and others, in 
1663, was the grant under which the Carolinas were set- 
tled. The boundary thereof was, ' ' beginning at Lucke 
island in the southern waters of Virginia, thence west to 
the Southern seas, and south to the river Mathias, which 
bordereth on the coast of Florida, ' ' etc. 

These amended charters were granted by James, styl- 
ing himself King of England, Scotland, France and Ire- 
land. 



280 CONSTITUTION OF THE UNITED STATES. 

The charter to the Karl of Clarendon and others was 
granted by Charles II., styling himself King of England, 
Scotland, France and Ireland. 

These three grants included all of North America be- 
tween 31 ° and 48 ° north latitude, extending across the 
continent from sea to sea.* 

In 1673, being sixty years after England had taken 
possession of the greater part of it, and ten years after 
she had taken possession of the whole of it, France 
claimed to have discovered the province of Louisiana, 
and governed the same by officers sent out from Paris, 
making New Orleans the capital of the province. 

On November 3, 1762, some ninety years after claim- 
ing to have discovered it, France ceded that part of it 
that lay on the east of the Mississippi river, including 
New Orleans, to Spain ; but Spain retroceded it to France 
by treaty of Ildefonso, October 1, i8oo.f 

This treaty was laid before a called session of congress 
by President Jefferson, that met the 17th of October, 
1803, which resulted in what is called the Louisiana pur- 
chase. 

The fact that England had possession of said province 
at the time France claimed to have discovered it, and 
claimed it prior to the treaty of Paris of 1763, why was 
it not included in the treaty of alliance between France 
and the United States of 1778 ? The sixth section of 
that treaty reads as follows : 

' ' Art. 6. The most Christian King renounces forever 
the possession of the islands of Bermuda, as well as of 
any part of the continent of North America which be- 
fore the treaty of Paris, in 1763, or in virtue of that 
treat}^, were acknowledged to belong to the crown of 



* Poore's Charters. f Id. 



INTERCOURSE AND TRADE, ETC. 28 1 

Great Britain, or to the United States, heretofore called 
British colonies, or which are at this time, or lately have 
been, under the power of the king and crown of Great 
Britain."* 

But in addition to this claim, the charter to the 
Georgia Company, granted in 1732 by King George II. , 
paid no attention to the claim of France to the province 
of Louisiana, for the grant to Georgia stretches entirely 
across said province to the full width of the grant to that 
colony by the express language of the charter, showing 
that England — at least at that time — claimed all that she 
had appropriated by planting her colonies in this coun- 
try, and doubtless continued to claim the whole of it, 
which we have seen included all that part of the conti- 
nent of North America between 31 ° and 48 ° north lati- 
tude, extending from the Atlantic to the Pacific 
oceans. 

Having shown what England claimed, I will now show 
what the colonies claimed while the Revolutionary War 
was going on. 

On the 15th of December, 1778, the legislature of 
Maryland adopted a declaration setting out that many of 
the states claimed large surplus and unsettled territory, 
that some of them claimed to extend to the Mississippi 
river or to the Pacific Ocean, and on the same day drew 
up instructions to the members of congress from that 
state, directing them to insist on so amending the articles 
of confederation as to authorize congress to fix the 
boundary of the states and to set apart said surplus ter- 
ritory as a fund to pay the war debts, f 



* Statutes at Large, U. S., vol. 8. 

t Henning's Stat, of Va., vol. 10, pp. 549-556. 



282 CONSTITUTION OF THE UNITED STATES. 

The state of Virginia, on the 14th of December, 1779 
{being about a year afterward), prepared and adopted a 
remonstrance to the Maryland resolutions and instruc- 
tions, from which I make the following quotation : 

. . ' ' Congress have lately described and ascertained 
the boundaries of these United States as an ultimatum in 
their terms of peace. The United States hold no terri- 
tory but in right of some one individual state in the 
union ; the territory of each state, from time immemorial , 
hath been fixed and determined by their respective char- 
ters, there being no other rule or criterion to judge by ; 
should these in any instance (when there is no disputed 
territory between particular states) be abridged without 
the consent of the states affected by it, general confusion 
must ensue ; each state would be subjected in its turn to 
the encroachments of the others, and a field opened for 
future wars and bloodshed ; nor can any agreements be 
fairly urged to prove that any particular tract of country, 
within the limits claimed by congress on behalf of the 
United States, is not part of the chartered territory of 
some one of them, but must militate with equal force 
against the right of the United States in general ; and 
tend to prove such tract of country (if north-west of the 
Ohio river) part of the British province of Canada. . .. 

' ' When Virginia acceded to the Articles of Confedera- 
tion, her rights of sovereignty and jurisdiction within 
her own territory were reserved and secured to her, and 
can not now be infringed or altered without her con- 
sent. . . ."* 

The action of the legislatures of these two states show 
that, in the midst of the war, the states claimed all of the 
territory within the boundary of their respective charters, 



■*Henning's Stat, of Va., vol. 10, p. 558. 



INTERCOURSE AND TRADE, ETC. 283 

and that the whole of said territory was claimed by Eng- 
land ; therefore, it was claimed by both parties to the 
revolutionary war, and of course the whole of it was 
involved in that war, and passed to the several states 
according to the boundary of their respective British 
charters upon the acknowledgment of their independ- 
ence. 

As said by the supreme court, whatever England 
claimed, or was entitled to when war was declared, was 
involved in the war and passed to the colonies by the 
acknowledgment of their independence ; and the treaty 
with England attempting to define the boundary of the 
United States did not affect the boundary thereof, for no 
territory was granted by that treaty. * 

As long as the colonies remained mere municipal agents 
of Great Britain, the disparity in the size of them, as col- 
onies, was a matter of no consequence, but when they 
were about to become sovereign states, that disparity ex- 
cited jealousies among them, and three of the states de- 
layed ratifying the Articles of Confederation on account 
of it, and insisted on the surrender of their surplus 
territory by the large states to aid in paying the ex- 
penses of the war. And the congress made repeated 
appeals to the large states to do so, but none were 
heeded until the congress pledged itself to hold the sur- 
plus territory so ceded by the states, for the benefit of all 
of the states, and to divide it up into convenient sizes and 
shapes to be formed into states, and as fast as either of 
said divisions should contain a sufficient population to 
constitute a state, to admit the same as a new state with 
equal sovereignty and freedom with the existing states, 



* 12 Wheaton, 523 (U. S.), Harcourt, etc., v. Guillard, etc. 
Wheaton, 530 (U. S.), Henderson v. Poindexter. 



284 CONSTITUTION OF THE) UNITED STATES. 

which pledge was made with the resolution adopted on 
the — day of September 1780. 

In consideration of this pledge the state of Virginia, on 
the 2d of January, 1781, authorized the cession of its sur- 
plus territory north-west of the Ohio river with certain 
reservations to soldiers, settlers, etc. 

Although Virginia offered to cede its territory north- 
west of the Ohio river in 1781, the deed for it was not 
made until 1783, and was not delivered until the 1st of 
March, 1784. This deed, after reciting the act of the 
Virginia legislature and the reservation of certain parts 
for soldiers and settlers, proceeded as follows: "Now, 
therefore, know ye, that we, the said Thomas Jefferson, 
Samuel Hardy, Arthur Lee, and James Monroe, by vir- 
tue of the power and authority committed to us by the 
act of said general assembly of Virginia, before recited, 
and in the name, and for and on behalf of said common- 
wealth, do, by these presents convey, transfer, assign, 
and make over, unto the United States in congress as- 
sembled, for the benefit of the said states, Virginia in- 
clusive, all right, title and claim, as well of soil as of 
jurisdiction, which the said commonwealth hath to the 
territory or tract of country within the limits of the Vir- 
ginia charter, situate, lying, and being, to the north- 
west of the river Ohio, to and for the uses and purposes, 
and on the conditions of the said recited act." . . .* 

All of the states, except North Carolina and Georgia, 
had followed Virginia's example and ceded their surplus 
territory to the United States, before the convention that 
made the constitution met ; and it was believed that 
those two states would also cede their surplus territory 
to the United States. 



* These proceedings may be found in volumes 10 and II, Hen- 
ning's Statutes at Large of Virginia. 



INTERCOURSE AND TRADE, ETC. 285 

I have not examined the deeds from each of the states 
to the United States, but there was no convenient or rea- 
sonable way for them to convey their surplus territory 
respectively, except to convey from a given boundary 
line to the extent of the boundary of their respective 
British charters, which vested the United States with the 
true and paramount title to what was known as the 
Louisiana province. 

England's claim to the whole of that part of the conti- 
nent of North America included between Canada and the 
Floridas from the Atlantic to the Pacific Oceans having 
been entered by actual settlement on each of said colonial 
grants for the purpose of taking possession of the whole 
grant in each case, while no part thereof was claimed or oc- 
cupied adversely, by a well-settled rule of law each settle- 
ment spread over the whole grant to the extent of the 
boundary thereof ; and as but one constructive possession 
can exist at the same time, the settlement of France at New 
Orleans could not be made to extend further than the actual 
settlement and inclosures, if an adverse possession can be 
made available between nations, which is at least doubtful. 

But as England continued to claim it, which is shown 
in various ways, notably by the grant to the Georgia 
Company in 1732, the adverse possession at New Orleans 
could not prejudice England's title to what is called the 
Louisiana province. 

The whole of that part of the continent of North 
America between Canada and the Floridas, stretching 
across the continent from the Atlantic to the Pacific 
Oceans (which included the province of Louisiana), being 
claimed and occupied by England through her colonies 
at the beginning of the war of the revolution, the whole 
of it was involved in that war, and the title thereof 
passed from England to the states by the acknowledg- 
ment of their independence. 



286 CONSTITUTION OF THE UNITED STATES. 

Consequently the United States, under the articles of 
confederation, covered and included the whole of said 
part of the continent of North America ; and the United 
States, under the constitution of 1787, necessarily in- 
cluded the same country or territory ; and that was the 
country or territory that was contemplated by the con- 
vention in authorizing new states to be admitted, by the 
use of the following language in the draft of the consti- 
tution by the committee on detail : ' ' New states, law- 
fully constituted or established within the limits of the 
United States, may be admitted," etc. And doubtless 
the same country was recognized as being within the 
United States by the committee on style ; but that com- 
mittee, knowing that there was no authority granted by 
the constitution to congress or the United States to buy 
any additional territory, regarded the words "lawfully 
constituted or established within the limits of the United 
States " as surplusage, as no new states could be admitted 
unless they were lawfully constituted or established, and 
as no authority to buy territory was granted, no new 
states could be admitted unless they were within the 
limits of the United States ; therefore said committee 
changed it to ' ' New states may be admitted by the con- 
gress into this Union," etc. 

There being no authority in the congress to naturalize 
any but white persons being free, or to admit any except 
free white people into the family of the nation, and there 
being no authority in the United States to acquire terri- 
tory, the whole of the surplus territory ceded to the 
United States in trust by the respective states is obliged 
to be held for the exclusive use of the citizens of the 
United States and such free white people as congress may 
naturalize ; and as no territory can be bought, no people 
can be purchased as part of any territory by the United 
States government or any of its departments. 



INTERCOURSE AND TRADE, ETC. 287 

These provisions wisely secure the purity of the body 
politic or national family of the United States, and firmly 
reserve to the white people alone the sovereign authority 
of the nation. 

Should the people of the states (in whom the entire 
sovereign authority of the nation is lodged) desire to add 
territory to the United States, or to take a different race 
or grade of people into the national family or body politic 
of the nation, they may do so, provided they speak 
through a federal convention and ratify the same by con- 
ventions in three-fourths of the states ; those conventions 
being the only organ provided by the constitution through 
which the people can express their sovereign will on any 
subject.* 

Many of the anti-slavery people of the free states 
were opposed to the United States getting possession of 
the Louisiana province, because it would evidently in- 
crease the slave territory and add other slave states to 
the union ; and some of them, conceding that said prov- 
ince was involved in the war, and although England's 
claim may have been better than that of France, still 
the United States was estopped from claiming it by 
reason of the treaty with Spain of 1795, fixing the west- 
ern boundary in the middle of the Mississippi river. 
But that treaty, as well as the one with England, was 
passed on by the supreme court in the cases reported in 
12 Wheaton, heretofore cited, did not profess to pass 
title to, or convey any territory by either party ; there 
were no words of purchase, conveyance, or grant of any 
territory in said treaty. But if there had been, the 
whole of the surplus territory of the several states had 
been eeded to the United States in congress assembled, 
in trust for a specific purpose (to wit), to be held for the 

* See chaps. 1 and 2, 



288 CONSTITUTION OF THE UNITED STATES. 

equal benefit of all of the states, and to be sold only to set- 
tlers and emigrants who would occupy it, and as fast as 
any particular division of it should acquire a sufficient 
population to entitle it to a representative in congress, to 
admit such division into the union as an equal state. 
Therefore, any agreement the United States may have 
made with Spain not to claim the territory west of the 
Mississippi could not have any binding force on the sev- 
eral states of the United States, because it would have 
been in violation of the trust by which the United States 
held that territory. 

Second, Spain had no interest in the territory west of 
the Mississippi river, for the whole of the territory ceded 
by France to Spain laid on the east side of that river. 

Third, there was no bargain or sale of any territory on 
the west side of the Mississippi river by the United States 
to Spain in that treaty, nor was any consideration offered 
or paid for any territory west of that river ; consequently 
no estoppel can operate against the claim by the states of 
the territory west of the Mississippi river and none can 
possibly arise out of that treaty with Spain. 

It is, however, claimed that Mr. Jefferson doubted the 
the existence of authority under the constitution to pur- 
chase the province of Louisiana, and urged an amend- 
ment to the constitution to authorize its purchase. 

If Mr. Jefferson was guilty of knowingly and willfully 
violating his oath to support the constitution, instead of 
being revered as the great apostle of the liberty of the 
people, he should have been impeached and condemned 
as an arch enemy of constitutional government and hu- 
man freedom. But there was never any foundation for 
that charge, and it must have been started and kept alive 
by his enemies, for it is a vile aspersion of his character. 

Mr. Jefferson was an active participant in all of the 
proceedings of his state — Virginia — relating to the claim 



INTERCOURSE AND TRADE, ETC. 289 

of that state to the territory within the boundary of its 
British charter ; and was one of the members of congress 
from that state at the time they were constituted com- 
missioners to convey the surplus territory of that state to 
the United States, and probably drafted the deed in per- 
son, part of which is hereinbefore quoted. As shown by 
that deed the whole of the territory of that state north- 
west of the Ohio river, to the full extent of the boundary 
as given by its British charter, was conveyed to the 
United States in congress assembled, in trust for the bene- 
fit of all of the states ; and he knew it to be the duty of the 
United States to acquire possession of every foot of the 
territory so conveyed as fast as it should be needed to 
make states of, and there is nothing in any part of the pro- 
ceedings relating to the acquisition of the possession of the 
province of Louisiana from France that shows the slightest 
doubt of, not only the authority, but the imperative duty 
to remove the obstruction to the possession of that prov- 
ince on the mind of Mr. Jefferson. 

It is however true, that Mr. Jefferson entered into 
convention with the first consul of France relating to the 
acquisition of the province of Louisiana some six months 
before communicating with the senate or congress. 

As the congress alone is authorized to contract debt, 
or put the United States under obligation to pay money, 
and by his convention said province was to cost the 
United States thirteen millions of dollars, Mr. Jefferson 
laid himself liable to impeachment for assuming legisla- 
tive powers, however he felt justified b}' declarations and 
acts of congress ; but whatever the congress may have 
declared on the subject, could be repudiated by the same 
congress or its successor, and if the congress had con- 
cluded that the previous resolutions, declarations and 
acts were insufficient to authorize so bold a step to be 
taken by the executive, that conclusion would amount to 



29O CONSTITUTION OF THE UNITED STATES. 

a decision that it was their duty to impeach the presi- 
dent. 

Mr. Jefferson, however, thought the previous acts and 
declarations authorized him to act without waiting to 
confer with the senate or the congress, and in a message 
to congress on the 17th of October, 1803, explains to 
congress his reasons for so doing, which are as follows : 

. . . ' ' Previous, however, to this period we had 
not been unaware of the danger to which our peace would 
be perpetually exposed whilst so important a key to the 
commerce of the western country remained under foreign 
power. Difficulties, too, were presenting themselves as 
to the navigation of other streams which, arising within 
our territories, pass through those adjacent. Proposi- 
tions had therefore been authorized for obtaining on fair 
conditions the sovereignty of New Orleans, and of other 
possessions in that quarter interesting to our quiet to 
such extent as was deemed practicable, and the provi- 
sional appropriation of $2,000,000 to be applied and ac- 
counted for by the president of the United States, intended 
as part of the price, was considered as conveying the 
sanction of congress to the acquisition proposed. The 
enlightened government of France saw with just descern- 
ment the importance to both nations of such liberal ar- 
rangements as might best and permanently promote the 
peace, friendship and interest of both, and the property 
and sovereignty of all Louisiana which had been restored 
to them have on certain conditions been transferred to 
the United States by instruments bearing date the 30th 
of April last. When these shall have received the con- 
stitutional sanction of the senate, they will without delay 
be communicated to the representatives also for the exer- 
cise of their functions as to those conditions which are 
within the powers vested by the constitution in congress. 

' ' Whilst the property and sovereignty of the Mis- 



INTERCOURSE AND TRADE, ETC. 29 1 

sissippi and its waters secure an independent outlet for 
the produce of the western states, and an uncontrolled 
navigation through their whole course, free from collision 
with other powers and the dangers to our peace from 
that source, the fertility of the country, its climate and 
extent, promise in due season important aids to our 
treasury, an ample provision for our posterity, and a 
wide spread for the blessings of freedom and equal 
laws. ' ' . . . * 

Said convention with France was laid before the sen- 
ate on the same day this message was sent to the con- 
gress (being the 17th of October, 1803). The senate 
approved it, and on the 21st of October, 1803, by special 
message, the treaty as consented to by the senate, and 
ratified and exchanged between the nations, was laid 
before the congress, f 

Said treaty was afterward sanctioned and carried into 
effect by the congress. 

Mr. Jefferson realizing the danger he was in, if the 
congress should fail to adhere to its former declarations, 
doubtless felt some uneasiness about exercising legisla- 
tive powers, and may have given expression to the same. 
But he never had any doubt of the right to quiet the pos- 
session of the province of Louisiana. 

One of the objects named in the preamble to the con- 
stitution, is "to provide for the common defense," and 
the ownership of the Floridas being necessary to the 
public defense, their purchase was made under that au- 
thority, and the purchase thereof in discharge of the 
duty to provide for the public defense was entirely justi- 
fied by the constitution. 



* See Messages of Presidents, vol. 1, p. 358. 
f Messages, etc., vol. 1, p. 362. 



292 CONSTITUTION OF THE UNITED STATES. 

The treaty by which the two Floridas were acquired 
was entered into the 2 2d day of February, 1819, but was 
not ratified until the 19th of February, 1821 ; and by it 
Spain ceded to the United States the two Floridas, to- 
gether with the island and city of New Orleans; and 
the United States ceded to Spain the greater part of what 
now constitutes Texas. As the United States held this 
territory of Texas under the cession of the states in 
trust, there was no authority in the United States to 
cede it to Spain ; nor had the United States any au- 
thority to cede it under the decision of the supreme 
court in the Dred Scott case, for even if the original title 
thereto emanated from the Louisiana purchase, still it 
would be held in trust to make states of, and could not 
be sold ; but that territory has been re-acquired by the 
United States, therefore that sale need not be considered 
any further. 

As all of the territory between Canada and the Flori- 
das, stretching entirely across the continent, from the 
Atlantic to the Pacific oceans, was involved in the war, 
it passed to the states by the acknowledgment of their 
independence, therefore the whole within that boundary 
must be construed to be within the United States. In 
addition hereto, as the United States is required to pro- 
vide for the public defense, they may buy territory con- 
tiguous to the United States where it may be necessary 
to provide for the public defense, and may admit new 
states formed of the territory so purchased. The new 
states authorized to be admitted into the union must, 
therefore, be within or contiguous to the existing states 
of America. 

But if the constitution and the declaration of indepen- 
dence be considered as obsolete, and this question one of 
policy and economics, the objections to the acquisition of 



INTERCOURSE AND TRADE, ETC. 293 

such islands or remote territory, except as stations for 
naval and commercial uses, is most dangerous, for such 
islands or remote territory, as states, will require a separate 
army and navy to maintain them, or each of them, which 
can never be used to aid in maintaining the contiguous 
American states ; while it is impossible to construct a fort, 
port, or arsenal, or to use ships of war for the protection of 
the coast and ports of any of the contiguous states of 
America, without their contributing to the security of 
each of the states of America. The bulk of the cost of 
maintaining such isolated states would fall on the Amer- 
ican states as tribute, or an additional expense. What 
could the American states expect in return for this trib- 
ute? 

The population of the Philippines is sufficient to fur- 
nish some part of the army to defend those islands, but 
soldiers drawn from that mongrel population can not be 
relied on to maintain the reputation the American citi- 
zens have won as soldiers ; nor can we expect from 
them great scientists, inventors, or statesmen to add 
glory to the citizenship of the United States. Then 
what can we expect in return for the extra expense 
to the American states? The taxation, under the con- 
stitution, is required to be equal, and the expendi- 
tures for each ought at least to approximate equality, 
for unless they do approximate equality, some of the 
states will be forced to pay tribute to other states. It 
is true some of the American states pay more taxes 
than other states, but the states that pay small amounts 
of taxes have but little expended on them ; and isolated 
states separated from the American states by the high 
seas or foreign nations, can not be made to pay a tithe 
of what they will cost the American states to maintain 
them. 



294 CONSTITUTION OF THE UNITED STATES. 

Furthermore, the people of the American states would 
expect to furnish the officers and other employes, to get 
some of their tribute money back, and that partiality to 
citizens of the American states would engender a spirit 
of resentment on the part of the citizens of such isolated 
states, which would likely result in manifestations of re- 
bellious feelings on the part of the natives, strong enough 
to call for interference on the part of the military au- 
thorities. 

In this way, whatever civil government may be estab- 
lished therein must gradually fall under the military 
authorities ; and thus, although formed into states, they 
would soon become mere provinces of the United States. 
And the military feeling engendered by the glittering dis- 
play a well-equipped army and navy would show, coupled 
with the impression that would necessarily take hold of 
the soldiery, that the army and navy alone represented 
the glory of this nation — particularly as the military 
would have at least partial control of the civil authorities 
in such isolated states — they would become so impressed 
with their importance as to make their authority felt in 
the contiguous American states, and speedily convert the 
Republic of the United States into an imperial nation 
with unlimited powers, or such as the empire would as- 
sume control of ; for as no powers were granted to the 
United States, no limitations were imposed on the United 
States by the constitution. 

Therefore, a new government would have to be estab- 
lished for the new empire. 

This new government being without limitations, with a 
formidable army and navy at its disposal, would not be 
likely to surrender powers of much value to the people. 

However, if we could secure mild-tempered and honest 
emperors for a long while, the powers of the empire 



intercourse; and tradk, KTC. 295 

might be limited by interpretation until an unwritten 
constitution, similar to that of the kingdom of Great 
Britain, would be established ; but if the emperors are to 
he chosen through bribery and fraud, no one can possibly 
tell how far the people will be enslaved or what tyranny 
may be imposed on them. 

It is claimed that we now own the Philippine group 
of islands, the Hawaiian islands, and some of the West 
India islands, and the Territory of Alaska. The natural 
inquiry therefore, is, what shall we do with them ? 

Since the theory upon which this nation is founded 
is that the sovereignty resides in the people only, and is 
inalienable from them ; according to the declaration of 
independence, the sovereignty must be equally vested in 
the people ; for if some of them can be subject to the 
will of others, those subject to others can not be sovereign. 
And by the thirteenth amendment to the constitution it 
is provided that ' ' neither slavery nor involuntary servi- 
tude, except for crime, shall exist within the United 
States, or any place subject to their jurisdiction." Our 
new possessions can not, therefore, be held as provinces 
or as permanent territories. 

No appropriation that may be made for the mainte- 
nance of the army and navy, necessary to protect states 
formed of any of said islands or territory, can in any 
possible way redound to the protection of the contigu- 
ous states of America, and, as under the limitations on 
the taxing powers, neither of said groups of islands 
as states can be made to pay a tithe of the cost of 
maintaining them, it will be impossible to equalize the 
burdens and emoluments between the American states 
and states formed of said isolated territory or islands. 
They therefore can not be admitted as equal states ; con- 
sequently the best that we can do is to get rid of them on 



296 CONSTITUTION OF THE UNITED STATES. 

the best terms consistent with the free institutions of the 
United States and the rules of humanity. 

International law requires us to hold them until we can 
turn them over to a humane government. The constitu- 
tion of the United States prevents us from selling said 
islands and territory to any buyer except the inhabitants 
themselves, for the reason that a sale of the islands and 
territory includes a sale of the inhabitants as a part of the 
land as hereinbefore explained. Therefore we are com- 
pelled to give them a chance of organizing a humane 
government for themselves, and to aid them in maintain- 
ing their government until the people thereof become 
strong enough to maintain it for themselves. 

We having aided in a friendly way the establishing of 
free governments organized by the inhabitants thereof for 
themselves, they in grateful recognition of that sendee 
would prefer to give their trade to the United States. 
Whatever government may be established should be 
required to pay the expense the United States is put 
to in giving such aid, and in case of the Philippine 
group of islands, they ought to be required to pay the 
twenty millions of dollars the United States paid Spain 
for them, as well as the cost of aiding in establishing the 
government conforming to the will of the inhabitants 
thereof. 

It is the duty of every government to carefully guard 
what is called the glory of the nation it represents. What 
is meant by the glory of a nation is its power to protect 
its institutions and the rights of its citizens, and to main- 
tain its dignity and standing among nations, and to main- 
tain its honor and adherence to its pledges and policy as 
a nation. 

The United States of America, without said islands or 
isolated territory, with a merchant marine to carry its 



INTERCOURSE AND TRADE, ETC. 297 

own commerce, and a navy to protect that marine, and 
conveniences to transport its soldiers from one point to 
another of the United States within the boundary thereof, 
will be able to successfully defend herself and compel 
other nations to respect the rights of her citizens ; but with 
said islands to be defended, whether as states or as prov- 
inces, the military power of this nation will be so weak- 
ened as not only to impair the glory of the United States, 
but may cause her to submit to insults to her flag that 
would not be tolerated as long as the nation remains 
compact and independent of the combined powers of the 
world. 

Article V. 

"The congress, whenever two- thirds of both houses 
shall deem it necessary, shall propose amendments to 
this constitution; or, on the application of the legisla- 
tures of two- thirds of the several states, shall call a con- 
vention for proposing amendments, which in either case 
shall be valid, to all intents and purposes, as part of this 
constitution, when ratified by the legislatures of three- 
fourths of the several states, or by conventions in three- 
fourths thereof, as the one or the other mode of ratifica- 
tion may be proposed by the congress ; provided, that no 
amendment which may be made prior to the year one 
thousand eight hundred and eight, shall in any manner 
affect the first and fourth clauses in the ninth section of 
the first article, and that no state, without its consent, 
shall be deprived of its equal suffrage in the senate. ' ' 

The language of this article is by no means clear as to 
the precise meaning the draftsmen intended to be given 
it; but an examination of the proceedings of the conven- 
tion will show the manner in which it found its way into 
the constitution in that form, and will shed some light 
on the interpretation that should be given to it. In con- 



298 CONSTITUTION OF THE UNITED STATES. 

struing the constitution, every part should be made to har- 
monize with every other part if possible, and all should 
yield to the great American principles upon which the 
system of government is based. 

As pointed out in the first, second, and third chapters 
of this review, the whole sovereign authority was re- 
served to the people, and the government of the federal 
union was to be but a corporate agent of the people of 
the several states ; and the people of the several states 
were made directly subjects of the federal union under the 
constitution of which this is a part, thereby making them- 
selves bear the same relation to the more perfect union 
that they bear to their respective states, viz. , of being both 
sovereign and subject ; and having adopted sovereign 
conventions as the only organ through which to express 
their sovereign will, this article must be construed as 
providing two modes of amending the constitution. 

One mode of amending that instrument is by two- 
thirds of each house of congress agreeing to and pro- 
posing amendments, which, when ratified by the legisla- 
tures of three- fourths of the states, shall be valid to all 
intents and purposes as parts of the constitution, but this 
mode of amending the constitution applies alone to 
changing the manner of executing the powers theretofore 
granted ; for each house of congress, as well as the legis- 
latures of the states, are but agents of the people, and 
they can neither enlarge their letters of authority nor 
reduce the duties imposed on them by the sovereign 
people while acting through the regular organ for ex- 
pressing their sovereign will. Besides, no power can be 
added to any of the departments of either the federal 
governmental agent or to the governmental agents of the 
states, except by the sovereign authority ; nor can any 
of said departments be relieved of any duty theretofore 



INTERCOURSE AND TRADE, ETC. 299 

imposed on them by the sovereign authority except by 
that authority itself, and that authority speaks o?ily 
through sovereign conventions. 

Consequently the congress and the legislatures of the 
states have no authority to change the plan or system of 
the government, but may change the mode of executing 
the powers expressly granted to the congress or to any 
department of the United States, but can go no further. 

The legislatures of the states are incompetent to grant 
such extensive powers ; it was the ratification by the 
people in their respective states alone that gave validity 
to the constitution.* 

This is as far as even Mr. Hamilton thought the con- 
gress and the legislatures of the states could go in amend- 
ing the constitution, f 

The other mode of amending the constitution is, by the 
call of the legislatures of two-thirds of the states for a 
convention, which the congress has no authority to refuse, 
but must act ministerially and make the call. % 

When this convention is called, the states must appoint 
the delegates to it ; and whatever amendment they may 
recommend, relating to any changes in the powers of the 
United States, must be submitted to conventions chosen 
by the legal voters of the states respectively, and when 
such amendments shall be ratified by such conventions in 
three-fourths of the states, they shall become part of the 
constitution to all intents and purposes. 1 1 

That convention, like the one of 1787, may propose 
any amendment it chooses, even to the abolishment of 
the departments of the governmental agents ; it can pro- 



* McCulloch v. Maryland, 4 Wheaton, 116. 

t See Letter 85, Federalist. 

X See Letter 85, Federalist ; see Story's Coin, on Con., sec. 1832. 

|| See letter of the convention to congress. 



300 CONSTITUTION OF THE UNITED STATES. 

pose to do away with the judiciary department, or a re- 
modeling of it only, or a remodeling of the executive 
or the congress, and when ratified by conventions in 
three-fourths of the states these propositions will become 
part of the constitution to all intents and purposes. As 
the present constitution was a mere proposal until ratified 
by the people in their state conventions, it will require a 
ratification by the people in state conventions to make 
any change in the form or powers of the government 
valid.* 

This was evidently the purpose of the convention 
when this article of the constitution was agreed to. For, 
the constitution was constructed on a series of resolutions 
offered by Hon. Edmund Randolph ; among those reso- 
lutions was the following : 

13. "Resolved, That provisions ought to be made for 
the amendment of the articles of union, whensoever it 
shall seem necessary, and that the assent of the national 
legislature ought not to be required thereto. ' ' f 

This resolution was agreed to by the committee of the 
whole, just as it was when offered, but it was altered by 
the committee of detail in drafting it into the form of a 
constitutional provision, by leaving out the latter clause, 
to- wit, "and that the assent of the national legislature 
ought not to be required thereto, ' ' so that it was made to 
read as follows : 

Art. 19. "On application of the legislatures of two- 
thirds of the states in the union for the amendment of 
this constitution, the legislature of the United States 
shall call a convention for that purpose. ' ' % 

This draft of the constitution, after some changes as 
to other parts of it, was referred to a committee of re- 



* McCulloch v. Maryland, 4 Wheat, 416. 

t Elliott's Debates, vol. 1, p. 145. % Ibid., p. 230. 



INTERCOURSE AND TRADE, ETC. 301 

vision, known as the committee on style,, and that com- 
mittee changed this article by attempting to insert in it 
a power not agreed to by the convention, and which it 
was doubtful that the convention would agree to. 

As Hon. Gouverneur Morris of that committee 
claimed to have rewritten the whole of the constitution, 
and to have made some changes in it, to him personally 
may be ascribed the entire credit of the apparent con- 
fusion in this article. As he was so zealous an advocate 
of establishing a sovereign government, which could not 
possibly be done, as long as the states had authority to 
alter, amend or change the whole plan of its powers and 
duties, it may be that the confused form the authority 
to amend the constitution appears in, was intentional on 
his part. But by so covering that addition to the article 
he left uncovered the provision agreed to by the commit- 
tee of the whole, of the convention, to- wit, that the states, 
or the people thereof, should have the right to amend the 
articles of the federal union without the assent of the 
congress, or of any other department or officer of the 
federal union thereto. 

To have given to the congress and the state legisla- 
tures authority to enlarge the powers of the congress, 
or to reduce the powers of the congress, would have 
transferred the sovereign authority from the people to 
them, and would have established all that is claimed by 
the nationalist ; for that would have vested the United 
States congress with sovereign authority, and conse- 
quently have divested the people of it. 

Conventions being the only organs through which the 
sovereign people express their sovereign will, whatever 
amendments to the constitution may be proposed by a 
federal convention ; changing the form of the govern- 
ment, or its powers ; or the race of people to constitute 



302 CONSTITUTION OF THE UNITED STATES. 

the national family, must be acted on by conventions of 
the states, and not by the legislatures of the states, as 
claimed by the late Justice Story, in his Commentaries 
on the Federal Constitution.* 

Suppose, after the legislatures of two-thirds of the 
states had called for a federal convention, the congress 
should neglect to call it. That duty being a mere minis- 
terial one, could the states go on and hold the convention 
without its being called by the congress ? I think they 
could ; at all events, should the states hold the conven- 
tion and propose amendments, which would afterward be 
ratified by conventions in three- fourths of the states, 
there is no authority in the union that could nullify the 
amendments so made to the constitution. 

The representatives in the congress being elected every 
two years, there is no probability that the members 
thereof would either fail or refuse to perform a plainly- 
declared duty under the constitution, especially if there 
was a reasonable hope of the amendments desired to be 
proposed by the federal convention being ratified by con- 
tentions in three-fourths of the states. 

On the other hand, suppose the congress should desire 
to enlarge its own powers by amendments to be proposed 
by two-thirds of each house thereof, with a hope of hav- 
ing them ratified by the legislatures of three-fourths of 
the states, the legislatures of the states would not be 
likely to ratify them unless extraordinary influence could 
be brought to bear on them. This was done in recon- 
structing the states on the southern side of the late civil 
war, and it must be admitted that such amendments 
were accomplished by coercive means ; that an entire 
revolution of the American system of government would 



* Story's Com. on Con., Sec. 1832. 



INTERCOURSE AND TRADE, ETC. 303 

have resulted but for a conservative judiciary, who pre- 
vented it by interpretation. 

Or suppose the wealthy citizens of the country should 
desire to change the federal republic into an aristocracy 
of wealth, and provide for perpetuating their wealth in 
their own families. After influencing the congress to pro- 
pose such amendments as they wanted, they might seek 
to control the election of the legislatures in enough states 
to ratify their amendments, by the skillful use of money 
in buying up the public newspapers, and engaging the 
services of able speakers to stump the states to be carried 
against the will of the people ; or they might induce the 
congress to take control of elections in the several states 
under pretense of regulating the election of representa- 
tives to the congress, and presidential electors, and de- 
prive those citizens who were opposed to the revolution 
from voting, and in that way carry the election of repre- 
sentatives to the legislature, and by either mode secure 
enough of the states to ratify the amendments to the 
constitution. 

If the congress and the legislatures of the states are 
authorized to so amend the constitution as to change the 
form of the government, the action of the congress and 
the legislatures of the states would be political in char- 
acter, and therefore beyond the reach of the judiciary 
department, and there would be no remedy except in re- 
sorting to the great principle set forth in the Declaration 
of Independence, of exercising the right of the people to 
change their government at will. 

The proviso that no amendments, prior to the year 
1808, affecting the first and fourth clauses of the ninth 
section of the first article relates to the importation of 
African slaves, and has become obsolete by the thir- 
teenth, fourteenth and fifteenth amendments to the con- 
stitution, as well as by the lapse of time. 



304 CONSTITUTION OF THE UNITED STATES. 

The second proviso, to-wit: "No state without its 
consent shall be deprived of its equal suffrage in the 
senate," still stands in full force and effect, and the con- 
stitution can not be so amended as to deprive any state 
of its equal suffrage in the senate, even by the sovereign 
people themselves without the consent of the state to be 
deprived thereof. 

This provision is not as clear as it might have been 
made, it was never contemplated that any state could re- 
main in the union without equal suffrage in the senate, 
either with or without its consent ; but it was thought 
that some of the small states might prefer to consolidate 
themselves into one larger state, as provided in section 
three of article four, providing that ' ' no new state shall 
be formed by the junction of two or more states without 
the consent of the legislatures of the states concerned, as 
well as of the congress. ' ' 

Two states may consent to be merged into each other, 
and thereby be formed into a new state, which would 
necessarily cause one or the other to lose its equal repre- 
sentation in the senate ; but as long as each remains a 
separate state, they must each be represented equally in 
the senate, as provided in section three of article one ; 
and no state can change that provision by consent or 
otherwise. 

Nor can all of the other states combine and deprive 
any one of the states of that equal suffrage in the senate 
as long as the constitution is adhered to. 

"State," as used in this connection, means the politi- 
cal organization of the states. 

Article VI. 
Par. i. "All debts contracted and engagements en- 
tered into, before the adoption of this constitution, shall 



INTERCOURSE AND TRADE, ETC. 305 

be as valid against the United States under this constitu- 
tion as under the confederation." 

Par. 2. " This constitution and the laws of the United 
States, which shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under authority 
of the United States, shall be the supreme law of the 
land ; and the judges in every state shall be bound 
thereby, any thing in the constitution or laws of any 
state to the contrary notwithstanding. ' ' 

Par. 3. "The senators and representatives, before 
mentioned, and the members of the several state legisla- 
tures, and all executive and judicial officers, both of the 
United States and of the several states, shall be bound by 
oath or affirmation to support this constitution, but no 
religious test shall ever be required as a qualification to 
any office or public trust under the United States. ' ' 

The second and third paragraphs of this article so 
forcibly bear on the judicial powers that they were con- 
sidered somewhat at length in the comments on the 
judiciary department ; they however perform so impor- 
tant a part in construing the constitution that they 
should be considered more minutely, although it may 
cause a repetition of some of the thoughts heretofore 
expressed. 

The first paragraph of this article assumes all of the 
debts or engagements of the confederation, and makes 
them debts and engagements of the more perfect union. 

It is however true, the jurisdiction of the United 
States was extended by the constitution to other subjects 
of government and their taxing powers greatly increased, 
to enable them the better to provide for maintaining the 
governmental agency of the union and its general welfare, 
and to enable the officials to discharge their duties and 
trusts as public agents. 



306 CONSTITUTION OF THE UNITED STATES. 

By a well-established rule of international law a change 
in the form of government does not relieve the nation of 
its debts and engagements ; hence the debts and obliga- 
tion of the confederation were in law obligations of the 
more perfect union. The government is not the nation, 
but simply the organ through which the nation expresses 
its will ; therefore every debt or engagement of the 
United States under their government as a confederation 
would remain debts and engagements of whatever gov- 
ernment might have been formed ; hence the assuming 
of the debts and engagements of the confederation was no 
more than the United States were compelled to do. 
Furthermore, in the change from the confederation to the 
more perfect union each state that had constituted a part 
of the confederation became a member of the more per- 
fect union without changing the character of the govern- 
ment from a federal republic, and without changing the 
name from that of " The United States of America," and 
without changing the people who composed the states 
of the union ; hence the United States under the new 
organization were bound to assume the debts and engage- 
ments of the confederation. 

The second paragraph of this article makes the con- 
stitution, laws made in pursuance thereof, and all treaties 
made and to be made, the supreme law of the land. 
Laws made in pursuance of the constitution necessarily 
consist of laws that aid in putting it into practical opera- 
tion, and differ widely from laws made under authority 
thereof ; the latter being laws that are authorized by the 
constitution, though not required to give that instrument 
force and effect. In one case the congress is in duty 
bound to pass the law to aid in the execution of the con- 
stitution, while in the other case the congress exercises its 
discretion. The laws made in pursuance of the constitu- 



INTERCOURSE AND TRADE, ETC. 2>°7 

tion, treaties made or that may be made under authority of 
the United States, and the constitution itself, are declared 
to constitute the supreme law of the land ; and ' ' the 
judges in every state shall be bound thereby, any thing 
in the constitution or laws of any state to the contrary 
notwithstanding. ' ' 

This has been construed by the Supreme Court of the 
United States to include all laws enacted by the congress 
under or in conformity with the constitution, whether 
made in pursuance of that instrument, or made by au- 
thority thereof. The supreme court having appellate 
jurisdiction of all cases arising under any law enacted by 
the congress, that interpretation must stand until it shall 
be overruled by that court. 

To more clearly bring the distinction between laws 
passed in pursuance of the constitution, and such as are 
enacted under or by permission thereof, it should be 
borne in mind that there are powers that are exclusively 
within the jurisdiction of the states, and there are pow- 
ers of which the states and the United States are vested 
with concurrent jurisdiction. Among this character of 
powers there appears in the fourth article the following : 

' ' Full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every 
other state. And the co?igress may by general laws pre- 
scribe the manner in which such acts, records and proceed- 
ings shall be proved, and the effect thereof. ' ' 

The several states being vested with eminent domain 
over the lands within their respective boundaries, and 
each state being authorized to construct its own govern- 
ment, and organize its own judiciary, and make its own 
local laws, each state must have authority to prescribe 
the evidences of title to the lands therein, the evidence 
of the public acts and how they shall pass and be proven,. 



308 CONSTITUTION OF THE UNITED STATES. 

and determine which of the courts thereof shall constitute 
courts of record, and how the official acts of each shall 
be shown. 

In each of these particulars, the courts of the re- 
spective states, as well as the supreme court of the United 
States, recognizes the laws of the respective states as the 
paramount law on these subjects, notwithstanding the 
act of congress may, and in many instances does, conflict 
with the state law relating thereto. 

There are other instances wherein the jurisdiction of 
the states and of the federal union are concurrent, where 
the state law is permitted to prevail over the federal law, 
which might be shown. 

But this is regarded as sufficient to prove that there is 
a broad distinction between laws passed in pursuance to 
the constitution and the laws passed under that instru- 
ment. 

All treaties made or to be made under authority of the 
United States are declared to be the supreme law of the 
land ; but treaties are the only character of laws made 
under authority of the United States that are declared 
to be the supreme law, and no other laws made under or 
by the permission of the constitution are to be regarded 
as any part of the supreme law. 

As shown in considering the judiciary, this paragraph 
also expressly requires the judges of the state courts to 
be bound by the constitution and laws of the United States 
made in pursuance thereof, and by all treaties made and 
to be made under authority of the United States, as the 
supreme law of the land, etc. 

This provision refers to the judges of the state courts 
in their official capacity, and was intended to bind them 
as judicial officers in the discharge of their judicial 
duties ; for a subsequent paragraph of this article re- 



INTERCOURSE AND TRADE, ETC. 309 

quires the judges of the state courts, in conjunction with 
all state and federal officers, to take an oath to support 
the constitution. This paragraph, therefore, can only 
apply to the office of the judges of the state courts, and 
requires them as judges to be bound. They must, there- 
fore, exercise a judicial discretion in ascertaining the 
meaning of the different provisions of the constitution, 
also a judicial discretion in ascertaining whether the law 
they may be called on to obey was made in pursuance of 
the constitution, and also a judicial discretion in ascer- 
taining whether the treaties they may be called on to 
obey were made under authority of the United States ; 
and should the judges of the state courts find that the 
treaties were not made under authority of the United 
States, or that the laws involved were not made in pur- 
suance of the constitution, they could not treat them as 
any part of the supreme law of the land without disre- 
garding their oaths of office ; and they must interpret 
the constitution for themselves, and can not rely on the 
supreme court of the United States to interpret that in- 
strument for them. 

It is claimed by the nationalist that the last clause of 
this second paragraph was intended to put at rest all 
possible danger of any conflict between the judiciary of 
the states and that of the United States. But the first 
clause of this paragraph declares what shall be the su- 
preme law of the land, and the third paragraph requires 
the judges of the state courts, and all other officers of 
the states, and of the United States, to be bound by oath 
or affirmation to support the constitution, which neces- 
sarily includes all laws made in pursuance of the consti- 
tution ; and all treaties made, or to be made, especially 
as the organization of the judiciary of the United States 
gives to the supreme court appellate jurisdiction of all 



310 CONSTITUTION OF THE UNITED STATES. 

cases arising under the constitution ; laws made by the 
congress ; treaties made by authority of the United 
States ; controversies between citizens of different states, 
etc., render it impossible for any conflict between the 
jurisdiction of the state and federal courts, without said 
provision. So that it was a senseless and idle provision, 
unless it was intended to perform some other function, 
and it must therefore be construed to have vested the 
state courts with judicial discretion, not to prevent possi- 
ble conflicts between the state and federal courts. 

Some light may be drawn from the proceedings of the 
convention on this subject. 

This provision, as adopted by the committee of the 
whole, and as prepared by the committee on detail, in 
transforming it from a resolution to a provision of the 
constitution, differed from the wording of it by the com- 
mittee on style. The resolution was : 

7. "Resolved, That the legislative acts of the United 
States, made by virtue and in pursuance of the articles 
of union, and all treaties made and ratified under the 
authority of the United States, shall be the supreme 
law of the respective states, as far as those acts or 
treaties shall relate to the said states or their citizens and 
inhabitants ; and that the judiciaries of the several 
states shall be bound thereby in their decisions any thing 
in the respective laws of the individual states to the con- 
trary notwithstanding."* 

This resolution, in conjunction with the other resolu- 
tions to go into the constitution, were put into the hands 
of a committee to reduce them to proper forms as consti- 
tutional provisions, known as the committee of detail. 

That committee made no change in the substance, 

* Elliott's Debates, vol. 1, p. 221. 



intercourse; and trade, etc. 311 

though it changed the language somewhat so as to read 
as follows : 

Art. 8. "The acts of the legislature of the United 
States made in pursuance of this constitution, and all 
treaties made under the authority of the United States, 
shall be the supreme law of the several states, and of 
their citizens and inhabitants ; and the judges in the 
several states shall be bound thereby in their decisions, 
any thing in the constitutions or laws of the several 
states to the contrary notwithstanding."* 

It is clear from the foregoing quotation that the judges 
of the states were expected to interpret the constitution 
and ascertain whether a law was made in pursuance of 
the constitution, and also to ascertain if a treaty was 
made under authority of the United States. 

It will be remembered, however, that at the time that 
provision was agreed to by the convention, the organiza- 
tion of the judiciary department did not vest jurisdiction 
in the federal court of actions arising under the constitu- 
tion ; it was changed by the committee on style, or rather 
by the Hon. Gouverneur Morris, and as that change was 
made, it was necessary to change this paragraph also, 
but failing to change the paragraph under consideration, 
it stands in flagrant conflict with the organization of the 
judiciary department, and sustains Messrs. Jefferson, 
Jackson and Lincoln in denying that the supreme court 
was vested with exclusive authority to finally interpret 
the constitution. 

Doubtless the Hon. Gouverneur Morris overlooked the 
conflict he was leaving against his hope of giving the 
supreme court such autocratic powers, as exclusive au- 
thority to finally interpret the federal constitution must 



* Elliott's Debates, vol. 1, p. 227. 



312 CONSTITUTION OF THE UNITED STATES. 

have vested it with. Or he feared that so radical a 
change "would alarm others or shock their self-love." 

If the organization of the judiciary of the United 
States had remained as it was agreed to by the conven- 
tion, and as expressed by the committee on detail, the 
constitution would have been above the Supreme Court 
of the United States, as well as above every other de- 
partment of the United States, and of the states ; and 
not subject to be changed or modified by interpretation 
by the supreme court. 

As originally drafted the constitution could not be 
changed by interpretation by any of the departments, or 
any tribunal, except the sovereign people in sovereign 
conventions ; therefore, all courts were compelled to give 
to that instrument their own construction, and it was 
highly important to designate what should constitute the 
supreme law, and to require the judges of the state courts 
to be bound thereby. 

The language of this paragraph, as well as that used in 
the various provisions of the constitution bearing on the 
subject, shows that it vests the judiciary of the several 
states with authority to construe the constitution and 
determine for themselves whether any act of the con- 
gress be in pursuance of the constitution or simply 
authorized by it ; and to determine whether any treaty 
was made under authority of the United States. How- 
ever, since the change put into the constitution, giving 
to the Supreme Court of the United States " jurisdic- 
tion of all cases arising under the constitution or laws 
of congress, ' ' and since the supreme court so interprets 
the constitution as to authorize it to finally interpret that 
instrument and holds that every law passed by the con- 
gress shall constitute parts of the supreme law, the dis- 
tinction between laws passed in pursuance of the consti- 



INTERCOURSE AND TRADE, ETC. 313 

tution and those passed by authority thereof is made 
wholly unavailing. 

As the United States constitutes a part of the govern- 
mental machinery of the states, they constitute a part of 
the governmental machinery of the United States ; every 
officer of each of the states, as well as those of the United 
States, ought to be required to take an oath to support 
the constitution of the United States. 

Article VII. 

"The ratification of the conventions of nine states 
shall be sufficient for the establishment of this constitu- 
tion between the states so ratifying the same. ' ' 

It should be remembered that this constitution was 
formed under authority of the confederation. An at- 
tempt was made to call or convene a confederate con- 
vention of delegates from the states, but that effort fell 
through. Afterward the congress of the confederation 
called a convention according to authority contained in 
the articles thereof to meet in Philadelphia, and it was in 
that convention and under that authority the states sent 
delegates to amend the articles thereof, to make them 
adequate to the exigencies of government and the better 
to preserve the union. 

The Articles of Confederation, or the Constitution of 
1777, as it was frequently called, expressly declared that 
the states should retain all of their sovereignty and juris- 
diction as free and independent states.* 

As sovereign states, each had a right to speak and act 
for itself in all matters relating to any changes in its 
form of government or its relations to other sovereign- 
ties ; for, being sovereign, its will was supreme, and 



* Articles 2 and 3, Confederation. 



.314 CONSTITUTION OF THE UNITED STATES. 

could not be limited. However, sovereign nations or 
states may bind themselves by voluntary engagements, 
by treaties, or compacts of union, without parting with 
their respective sovereignty.* 

The states, in forming the compact of union under the 
Articles of Confederation, obligated themselves to abide 
Dy acts of the United States in the congress assembled, 
on all questions committed to the congress by the articles 
thereof ; and, as provided in said articles, agreed that the 
union should be perpetual unless changed by the con- 
gress and afterward confirmed by the legislature of every 
state, f 

It will also be observed that at the time the constitu- 
tion was constructed the states were sovereign, and must 
have continued so until altered by the adoption of the 
new constitution, if in fact the new constitution had 
the effect of changing the relation of the states to the 
union. 

The congress, instead of proposing specific amend- 
ments to the articles of confederation, called a conven- 
tion to propose them ; that convention was approved of 
by the legislatures of the states, as manifested in the ap- 
pointment of delegates thereto. That convention changed 
the character of the confederation, not only by enlarg- 
ing the powers thereof, but changed it from a confedera- 
tion of the political corporation of the several states 
only, to a confederation including the sovereign people 
of the several states, so that (as shown in second chapter), 
under the Constitution of 1787, the union consists of a con- 
federation of both the political corporations of the states 
and of the sovereign people of the several states. When 
the new constitution was completed by the convention, it 



*Vattell's Law of Nations, Book I, Chap. 1, Sec. 10. 

f Article 8, Confederation , 



INTERCOURSE AND TRADE, ETC. 315 

was reported to the congress, which, approved it and re- 
ferred it to the legislatures of the several states, with the 
recommendation that they call conventions respectively to 
ratify the same, as had been advised by the convention. 
The legislatures manifested their approval of it by call- 
ing conventions in their respective states to ratify the 
same ; and the states, in conventions consisting of dele- 
gates chosen by the people thereof for the express pur- 
pose of considering the provisions of the new constitu- 
tion, with authority from the people themselves to ratify 
the same if approved by the said delegates. The dele- 
gates in said conventions in each of said states ratified 
the new constitution in the order of time, and with 
recommendation of the amendments thereto as shown in 
the second chapter of this review. 



316 CONSTITUTION OF THE UNITED STATES. 



CHAPTER X. 

RELATES TO THE AMENDMENTS TO THE CONSTITUTION. 



Article I. 

' ' Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press ; or 
the right of the people peaceably to assemble, and to pe- 
tition the government for redress of grievances. ' ' 

The provisions of the whole of this article are included 
within the spirit of the constitution, and if the United 
States government be considered as a mere agent of the 
states and people thereof, and a part of the government 
of each of the states, the congress can exercise no pow- 
ers except those that are granted to it by the constitu- 
tion, and neither of the powers expressly prohibited to 
the congress by this article is included in any grant of 
power to the congress by the constitution. Without the 
prohibitions contained in this article, the congress could 
not exercise either of the powers named without violat- 
ing the constitution. However, the rights sought to be 
protected by the provisions of this article were held so 
dear to the people of the respective states, that the con- 
gress was expressly prohibited from interfering with 
them. In each of the states these powers were reserved 
to the people, and withheld from the grant of powers to 
their respective states in a bill of rights. There being 
no bill of rights connected with the constitution of the 
United States, this article and the other nine articles, rat- 
ified at the same time, it was hoped, in a measure, would 
supply its place. 



AMENDMENTS TO THE CONSTITUTION. 317 

That the congress should have authority to establish a 
national religion is so repugnant to free government and 
religious liberty, that it needs no argument to show the 
importance of expressly prohibiting the exercise of that 
power. And authority in congress to abridge the free- 
dom of speech or of the press, would arm the congress 
with power to distroy the freedom of the people, and 
enable it to mount over other barriers or checks placed 
upon it by the other provisions of the constitution ; hence 
the prohibitions contained in this article can not be too 
highly esteemed. 

However, notwithstanding this provision of the con- 
stitution, the congress in 1798 passed what was familiarly 
known as the alien and sedition acts. Which declared 
it to be unlawful for any individual, or publisher of a 
newspaper, to speak or publish offensive language of or 
concerning the president or any of his cabinet, or any 
public officer, and prescribed a punishment, by fine and 
imprisonment. 

That act soon passed out of favor, and was so heartily 
condemned by the American people as to become a dead 
letter before it expired by limitation. Justice Chase, of 
the supreme court, who more harshly than either of the 
other justices executed said law, was arraigned for im- 
peachment, not so much for executing that act as for his 
coarseness in executing it, and indulging in political bias 
while on the bench, particularly in his charges to the 
juries. The impeachment failed on account of his serv- 
ices in the Revolutionary War and in the organization 
of the government. The alien and sedition act is now 
held to be repugnant to the constitution by the American 
people generally, though during the late civil war the 
papers that published news favorable to the rebellion 
were suppressed, in flagrant violation of this article of 
amendment to the constitution. 



31 8 CONSTITUTION OF THE UNITED STATES. 

Article II. 

"A well-regulated militia being necessary to the se- 
curity of a free state, the right of the people to keep 
and bear arms shall not be infringed. ' ' 

The third paragraph of section 10, article I, of the 
constitution, prohibiting the states from keeping troops, 
or ships of war, in time of peace, and the provisions of 
paragraphs 13, 14 and 15, of section 8, of article I, giv- 
ing to the United States authority to regulate the land 
and naval forces, and to provide for calling out the mili- 
tia, and of organizing, arming, and disciplining the 
same, made it necessary to qualify those provisions, by 
this article of amendment to the constitution, to enable 
the states to maintain a militia. 

Article III. 

"No soldier shall, in time of peace, be quartered in 
any house without the consent of the owner, nor in time 
of war but in a manner to be prescribed by law. ' ' 

The quartering of the soldiers in the houses of the 
citizens has been resorted to by tyrants to discover the 
patriots who love their country more than their ruler, to 
vent his spleen on, and to show his power to the people, 
by punishing those patriots, to hold others in such awe- 
as to prevent them from rebelling against his usurped 
powers. 

But, furthermore, power to quarter troops in the 
houses of the citizens, is utterly inconsistent with the 
sacredness with which the home government and the se- 
curity of the home castle are held under the laws of all 
English speaking people. And power to quarter troops in 
one's house at a time he does not want them there, not 
only curtails his liberties, but infringes on his right to 
use his own property as he pleases, in a lawful way. 



AMENDMENTS TO THE CONSTITUTION. 319 

This article, therefore, was necessary, not only to quiet 
the fears of the people, but as a limitation on the power 
of the public officials, and as security against changing 
the character of the government by gradual usurpations. 

Article IV. 

" The right of the people to be secure in their persons, 
houses, papers and effects, against unreasonable searches 
and seizures, shall not be violated ; and no warrants 
shall issue but upon probable cause, supported by oath 
or affirmation, and particularly describing the place to be: 
searched and the persons or things to be seized. ' ' 

This article, like the third, guards the people against 
the use of probable forces to aid the officials in enforcing 
usurped powers, should they become corrupt enough to 
desire a change in the government, by searching for evi- 
dences of what they might term treason on the part of 
patriotic citizens to deter others from asserting their 
rights and liberties as secured by the constitution. But, 
to be subject to be searched by arrogant officials, clothed 
with small official powers, would be extremely annoying 
and insulting to one's family as well as to himself ; still, 
where one is suspected of concealing persons or things 
unlawfully, and there are reasonable grounds for that 
suspicion, backed by oath or affirmation of the guilt of the 
accused, the authority to search is granted in this article 
by a negative pregnant ; for the provision against un- 
reasonable searches grants the right to make reasonable 
searches, when applied for under oath or affirmation of 
the guilt of the accused. 

This article is also valuable to allay apprehensions of 
unreasonable searches, and to protect the people against 
their use to aid in changing the form of government, and 
to prevent the people from being oppressed by corrupt 
officials. 



320 CONSTITUTION OF THE UNITED STATES. 

Article V. 

' ' No person shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment or in- 
dictment of a grand jury, except in cases arising in the 
land or naval forces, or in the militia when in actual 
service, in time of war or public danger ; nor shall any 
person be subject, for the same offense, to be twice put 
in jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be a witness against himself, nor be de- 
prived of life, liberty, or property without due process of 
law ; nor shall private property be taken for public use 
without just compensation." 

This article contains as important guards to the liber- 
ties of the people as any provision in the constitution. 

As no one can be punished for a capital or otherwise 
infamous crime, unless on a presentment or indictment 
by a grand jury, and in addition to the presentment or 
indictment of a grand jury there must be a verdict of a 
trial or petit jury, and conviction of the guilt of those ac- 
cused of capital or otherwise infamous crime, as shown by 
the sixth article of amendment, which is as follows : 

Article VI. 

"In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the state and district wherein the crime shall 
have been committed, which district shall have been pre- 
viously ascertained by law ; and to be informed of the 
nature and cause of the accusation ; to be confronted 
with the witnesses against him ; to have compulsory pro- 
cess for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defense." 

Therefore, an accused not only is entitled to the indict- 
ment or presentment of a grand jury, and a verdict of a 



AMENDMENTS TO THE CONSTITUTION. 32 1 

petit jury, but he is entitled to a speedy and public trial ; 
and can not be tried in a prison or bastile which has been a 
cradle or nursery for so much tyranny and mischief in the 
world. In our mother country persons had been put in 
prisons on spurious charges for political purposes, and 
held there without a trial, or when granted a trial it 
was conducted in the prison in the presence only of the 
minions of the tyrant, often private enemies of the 
prisoner. 

These two articles supported by the second paragraph 
of section nine of article one of the constitution, provid- 
ing for the writ of habeas corpus renders it utterly impos- 
sible to deny to any one a speedy and fair trial before a 
jury of his own state and district. 

These rights are again strengthened by the eighth 
article of amendment, which provides that excessive bail 
shall not be required. This, of course, applies only to 
bailable cases. These articles of amendment, to wit, the 
fourth, fifth, sixth, and eighth, include the necessary pro- 
visions for the protection of the personal liberties of the 
citizens not contained in the constitution, as it was when 
originally adopted by the states, and as long as they are 
respected and observed, it will be impossible for the public 
officials to rise above the people ; for no one can be either 
denied or shielded from a speedy public trial, before an 
impartial jury of the state and district in which the 
crime shall have been committed. As said in discussing 
the judiciary, the shielding of any one from such a 
trial, without extending that protection to all, is a denial 
of equal protection to those not so shielded, and society 
has as much right to enforce justice as the accused has to 
demand it. Indeed, there is more danger to the liberties of 
the people in shielding a class of offenders from a speedy 
public trial by a jury of their state and district, than can 
arise out of a denial of such a trial to any one ; because, the 



322 CONSTITUTION OF THE UNITED STATES. 

precedent of shielding from justice lays the foundation for 
the establishment of privileged classes, in repugnance to 
civil liberty; for civil liberty can not exist on any other 
foundation than equality of rights and immunities between 
all citizens. That the congress has violated these funda- 
mental principles in divers ways we are constrained to 
admit, notably, among the instances in which they were 
ignored, are : first, the passage of the alien and sedition 
acts ; second, the passage of what is known as the fugi- 
tive slave acts, protecting civil officers against trial and 
punishment for violating state laws, although they could 
not be tried for capital or otherwise infamous crimes 
committed in any state, by the federal judiciary or any 
tribunal of the United States. If the congress had au- 
thorized the fugitive slave law to be executed by the 
military arm of the United States, the soldiers could have 
been tried and punished for any offense committed under 
orders of superior officers, by court martial of the United 
States, although the crime may have been committed en- 
tirely in any one of the states, and by the United States 
authority, it would have been excusable in shielding them 
from punishment under state laws, enacted by the states 
while in rebellion against the United States. For every 
federal law, whether it be a provision of the constitution 
or an act of congress passed in pursuance thereof, consti- 
tutes a part of the supreme law of the land, and the state 
judges are bound by it, and whenever a state passes a law 
in conflict therewith for the purpose of preventing the 
federal laws being executed, such state would be in rebel- 
lion against the United States, to that extent at least. 

The Supreme Court of the United States not only sus- 
tains the validity of that act of congress, but carries it 
far enough to cover cases of those who, while acting 
under orders of the president, wantonly take human life, 
and as shown in a former chapter of this review, actually 



AMENDMENTS TO THE CONSTITUTION. 323 

shielded one Mr. Neagle, who shot and killed Ex- Chief 
Justice Terry of the State of California, from a trial be- 
fore the courts of that state, although said Naegle could 
not be tried in any court or before any tribunal of the 
United States, because the crime had been committed 
entirely within that state. 

These cases are sufficient to show a gradual taking 
away of the most valuable limitations in the constitution 
by the public officials. 

Article VII. 

"In suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by 
jury shall be preserved ; and no fact tried by a jury shall 
be otherwise re-examined in any court of the United 
States, than according to the rules of the common law." 

This article has been made use of to indicate an inten- 
tion on the part of the makers of the constitution, to vest 
the federal courts with a common law jurisdiction ; but 
the only function that this article can reasonably be 
made to perform on that subject, is to prescribe the mode 
of re-examining cases in the federal courts ; and the fed- 
eral court should look alone to the organization of the 
judiciary to ascertain the jurisdiction thereof. Suppose 
this article could be twisted into vesting the federal 
courts with a common law jurisdiction ; it may well be 
inquired what common law they would have jurisdiction 
of ; and if it is claimed that they were thereby vested 
with the jurisdiction of the common law of England, a 
pertinent inquiry arises as to what part of the common 
law of England, for much of the common law of Eng- 
land relates to the king and royal family, and to a dis- 
tinction between what is known in that country as the 
nobility and the common people ; and, surely, it will not 
be contended that this article inaugurates the English 



324 CONSTITUTION OF THE UNITED STATES. 

distinctions in society, or that it establishes a royal family, 
or a king.* But if this article be interpreted so as to make 
it refer to the common law of the respective states, as mod- 
ified by the statute of each individual state in which a 
suit may arise, and to be enforced in the state adopting 
the same, there is no conflict between its provisions and 
the other part of the federal constitution. The common 
law of the states in which any suit may arise and be pros- 
ecuted, should alone be enforced therein by the federal 
courts. For, by the rules of the common law, as modi- 
fied by the statutes of the state in which a contract may 
be made, always constitutes a part of the contract itself, 
and without considering the laws existing at the time to 
interpret, it would be utterly impossible to correctly de- 
cide on the right of the parties to any contract. 

Adopting this interpretation of this article, it provides 
valuable protection to each citizen who may sue or be 
sued in a federal court against the arbitrary rulings of an 
autocractic judge, by securing to them a jury to try 
their controversies according to the rules of law in the 
state where the contract was made, in all cases where the 
amount in controversy shall be twenty dollars, or upwards. 

Article VIII. 

"Excessive bail shall not be required, nor shall ex- 
cessive fines be imposed, nor cruel and unusual punish- 
ment inflicted. ' ' 

These eight articles of amendment to the constitution 
contain limitations on the United States, and its depart- 
ments, of a highly valuable character, though they are 
not the only limitations thereon ; for that instrument con- 
stitutes limitations on all powers granted, and excludes 
all powers not granted from the jurisdiction of the United 



*Par. 8, Sec. 9, Art. 1, Con. 



AMENDMENTS TO THE CONSTITUTION. 325 

States. So that the greatest limitations on the United 
States consist in the failure to grant powers to them. 

The government is like attorneys, in fact, who have no 
powers unless they be embraced within their letters of 
attorneys ; the United States, or the departments thereof, 
have no powers unless the grant can be found in the 
federal constitution, which is the letter of attorney given 
by the people to them. 

Because of a rule of interpretation to the effect that 
the enumeration of specified rights reserved to the 
people might be held in particular cases to exclude other 
rights not expressed, the ninth article was adopted, as 
follows : 

Article IX. 

' ' The enumeration in the constitution of certain rights 
shall not be construed to deny or disparage others re- 
tained by the people. ' ' 

This article entirely does away with that rule of inter- 
pretation. Therefore the naming of limitations on cer- 
tain powers has the effect of emphasizing and strength- 
ening the prohibition against the exercise of the named 
powers, without affecting the reserved powers. 

But the amendments to the constitution do not stop at 
the ninth article of amendment, but go further, and by 
the tenth article of amendment settle all doubts about 
the reserved powers, which is in the following language : 

Article X. 

' ' The powers not delegated to the United States by 
the constitution, nor prohibited by it to the states, are 
reserved to the states respectively, or to the people." 

I have referred to this article frequently in this re- 
view, and deem it useless to say more about it in this 
connection, than that it is utterly impossible to give to it 



326 CONSTITUTION OF THE UNITED STATES. 

any force at all, unless it serves to require a strict con- 
struction of the constitution ; for as heretofore con- 
tended, the constitution speaks only by the language 
thereof ; therefore it is impossible to delegate powers by 
it to the United States otherwise than by express lan- 
guage, particularly as all powers not delegated to the 
United States by the constitution, nor prohibited by it to 
the states, are expressly reserved to the states respect- 
ively, or to the people. 

How can the powers delegated to the United States by 
the constitution be distinguished from those that are ex- 
pressly reserved to the states respectively, or to the peo- 
ple, except by the letter of the constitution ? 

The supreme court, in the case of McCulloch v. State 
of Maryland, and in the case of Gibbons v. Ogden, here- 
tofore quoted and referred to, in the consideration of the 
organization of the judiciary department, admitted that 
if there was any thing in the constitution of 1787 like 
the provision in the constitution of 1777, requiring the 
constitution of 1787 to be strictly construed, the inter- 
pretation given to that instrument in those two cases 
would not have been authorized by the constitution ; 
hence that court could not have noticed this article of 
the constitution. 

Article XI. 

" The judicial power of the United States shall not be 
construed to extend to any suit in law or equity com- 
menced or prosecuted against one of the United States 
by citizens of another state, or by citizens or subjects of 
any foreign state." 

At a very early period in the history of the United 
States, the supreme court, by a divided court, held 
the United States to be a sovereign nation, and on 
that theory took jurisdiction of suits brought against 
several of the states by individual citizens of other 



AMENDMENTS TO THE CONSTITUTION. 327 

states, or by subjects or citizens of foreign states. The 
argument of some of the judges composing the majority 
of that court, in the case of Chisholm v. The State of 
Georgia, would lead to depriving the states and the 
people of all sovereign authority, and ultimately vesting 
the whole of that authority in the United States. To 
avoid that tendency, and to avoid the annoyance to the 
states, said eleventh article of amendment to the consti- 
tution was proposed by the third congress, on the 5th of 
September, 1794, and was declared by a message from 
the president to the congress, dated 8th of January, 
1798, to have been ratified by the legislatures of three- 
fourths of the states. 

This article of amendment takes away from the fed- 
eral courts jurisdiction of all cases wherein any indi- 
vidual may be the plaintiff against the state. The juris- 
diction of the federal courts never extended to contro- 
versies between citizens of the same state, or the citi- 
zens thereof and their own state, so that should the 
supreme court, by its interpretation of the constitu- 
tion, reduce the states to artificial persons, as other cor- 
porations are held, still the federal courts could not take 
jurisdiction of controversies to which a state may be a 
party, unless the controversy shall be between two or 
more states ; because this eleventh article of amendment 
expressly takes away from the federal court jurisdiction 
of suits against the states by citizens of another state, 
or citizens or subjects of any foreign state ; and the con- 
stitutional provision, in constituting the judiciary depart- 
ment, does not vest the federal judiciary with jurisdiction 
of controversies between citizens of the same state, nor 
between any state and its own citizens. 

To have vested the federal judiciary with jurisdiction 
of controversies between any state and its own citizens 
would have completely destroyed the federal principle 



328 CONSTITUTION OF THE UNITED STATES. 

and the power of the states to maintain their home 
government. 

In the formation of the constitution, no new powers 
were delegated to the states, though the states were, by 
that instrument, limited in the exercise of powers that 
they were vested with under the articles of confederation, 
which was necessary, in order to enlarge the powers of 
the United States sufficiently to make them adequate to 
the exigencies of government. 

It was not only necessary to take certain powers from 
the states to be given to the federal union, but certain 
other powers were necessarily taken from the states which 
were not given to the union but reserved to the people. 
Section ten of article I was thought sufficient to define 
all of this class of powers ; but by a refinement of legal 
reasoning, it was feared that the enumeration of certain 
rights, whether granted to the United States, or those that 
were prohibited to the states, or those reserved to the 
states or to the people, might be interpreted to grant 
greater powers to the union than was intended. To 
settle that danger the ninth article of amendment pro- 
vides that the enumeration of certain rights shall not be 
construed to disparage other rights reserved to the peo- 
ple ; and the tenth article of amendment provides that all 
powers not delegated to the United States nor prohibited 
to the states by the constitution, are reserved to the 
states respectively or to the people, which ought to allay 
every doubt on the subject, and require every grant of 
power to the United States to be strictly construed, as 
hereinbefore contended. 

The state governments had absolute control over their 
own citizens while they were acting as subjects thereof, 
though, while acting as sovereigns, they had absolute 
control over the governments or corporations thereof ; 
and neither of these rights was granted by the constitu- 



AMENDMENTS TO THE CONSTITUTION. 329 

tion of the United States, nor prohibited by that instru- 
ment to the states ; consequently, they were expressly 
reserved to the states respectively or to the people. 

The governments of the states are but corporations of 
limited powers denned by the constitution thereof, and 
the Supreme Court of the United States in the case of 
McCulloch v. The State of Maryland, before quoted, 
held the United States are sovereign in respect to the 
powers granted to them, and that the state governments 
are sovereign in respect to the powers reserved to them ; 
yet that would not authorize the United States to take 
jurisdiction of engagements entered into by the states in 
the exercise of their sovereign authority under their con- 
stitution ; unless it was possible for one sovereign to be 
under the control of another sovereign, which is utterly 
impossible. For if sovereignity is supreme and beyond 
control, except to the extent it may voluntarily obligate 
itself, no sovereign authority can be made subject to the 
control of another sovereignty, without destroying its 
sovereignty. This ought to have guided the supreme 
court, without the eleventh article of amendment to the 
constitution, but that court seems not even to have sub- 
mitted to the limitations imposed on it by this eleventh 
article of amendment, for, beginning with the Dartmouth 
College case, it has invariably adhered to the theory that 
private corporations granted by a state constitutes con- 
tracts, and that the states can not impair the obligation of 
those contracts. 

It must be conceded that no state can impair the obli- 
gations of contracts made under any law of such state, be- 
tween citizens of any state of the union, or between citizens 
of this country and citizens or subjects of foreign nations. 
But any state may not only impair the obligation of its 
own contracts, but it may repudiate an}^ contract it may 
make, and there is no power in the United States to pre- 



330 CONSTITUTION OF THE UNITED STATES. 

vent it, but, as before shown, the states have gotten rid 
of a large part of the evil effects of that ruling of the 
supreme court, by reserving the right by a general statute, 
or a provision of the constitution thereof, requiring all 
charters to private corporations to be subject to alteration, 
amendment or repeal, at the option of the state. So that 
the purposes of this eleventh article of amendment to the 
constitution is now practically executed, though not rec- 
ognized to its full extent as a part of the constitution. 

The first ten articles of amendment to the constitution 
were required by the states, and would have been at- 
tached to the several ordinances adopting the constitu- 
tion as conditions precedent, but for the fact that such 
conditions would have been worded in different language 
by each state, and would have been an impediment to put- 
ting the constitution into operation ; therefore, the friends 
of the constitution assured those who opposed the adop- 
tion of it as it was, that the required changes by the states 
should be proposed by the first congress, and submitted 
to the state legislatures for ratification. The congress in 
good faith proposed twelve amendments, but the state 
legislatures failing to ratify the first two, the last ten only 
became part of the constitution. 

As before stated, the eleventh amendment was prompted 
oy suits against the states by citizens of other states, and 
aliens. 

Article XII. 

The twelfth article of amendment, relating to the elec- 
tion of president and vice-president, has been given and 
fully discussed in the chapter on the executive depart- 
ment. 

Article XIII. 

Sec. i. "Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 



AMENDMENTS TO THE CONSTITUTION. 33 1 

have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction." 

Sec. 2. " Congress shall have power to enforce this 
article by appropriate legislation. ' ' 

This article was proposed by the thirty-eighth con- 
gress on the 1st of February, 1865, and was declared, in 
a proclamation of the secretary of state, dated the 18th 
of December, 1865, to have been ratified by the legis- 
latures of twenty-seven of the thirty-six states, viz.: 
Illinois, Rhode Island, Michigan, Maryland, New York, 
West Virginia, Maine, Kansas, Massachusetts, Pennsyl- 
vania, Virginia, Ohio, Missouri, Nevada, Indiana, Louis- 
iana, Minnesota, Wisconsin, Vermont, Tennessee, Arkan- 
sas, Connecticut, New Hampshire, South Carolina, Ala- 
bama, North Carolina and Georgia. 

The evident object of this article of amendment to the 
constitution was to abolish the institution of slavery 
throughout the United States. As all of the states 
were responsible for that institution, each state being 
bound to deliver up fugitive slaves, on claim, to their 
owners as shown in the third paragraph of section two of 
article four of the constitution ; and as property in slaves 
was an artificial right, not a natural right, there ought to 
be some way for the states to withdraw their support 
from that institution. But there was no way for them to 
do so provided in the constitution, consequently it could 
not be done except by the exercise of the sovereign au- 
thority of the people of the several states, and the only 
organ through which the people can express their sov- 
ereign will is a sovereign convention. The federal con- 
vention alone could propose such a radical change in 
the government, and the state conventions are the only 
organs through which the sovereign will of the people 
can be expressed in ratification of such a change. It 
is, however, true that the congress may propose amend- 



332 CONSTITUTION OF THE UNITED STATES. 

ments which, when ratified by the legislatures of three- 
fourths of the states, shall become parts of the con- 
stitution. But when we reflect that the United States 
consists of a union of the sovereign people of the sev- 
eral states, and also of a union of the political organi- 
zations of the several states, and that both the United 
States, and the several states, are but agents of the peo- 
ple of the several states, and neither of said agents has 
any powers except those that were delegated to them re- 
spectively by the people, their powers to amend the con- 
stitution must necessarily be limited to changes within 
the scope of the powers granted to them ; therefore, they 
can not change the character of the government, nor en- 
large its powers, nor relieve it of any of the duties im- 
posed on it by the sovereign authority. However, as all 
of the former slave states have changed their respective 
constitutions, and abolished the institution of slavery 
no difficulty can ever arise on this point ; still it is neces- 
sary to know how far the congress and the state legisla- 
tures can go in amending the constitution ; whether they 
can abolish any species of property in a state desiring to 
maintain it ; and if they can abolish property in birds or 
dogs, or in animals ferce natures that have been made 
property of by the state ; and whether, if they can abolish 
the rights of property in such animals, can it be done 
without compensation being paid to the owners for them, 
as was done in the abolition of slavery ? 

The right of property in slaves was by tne constitution 
required to be recognized by every state in the union, and 
it is provided that private property shall not be taken for 
public use without just compensation in the fifth article 
of amendments ; but this thirteenth article of amend- 
ment was proposed and ratified at a time when the peo- 
ple adhering to the union were excited and desired to pun- 
ish those who had taken part in the rebellion, and but 



AMENDMENTS TO THE CONSTITUTION. 333 

little attention was paid to the constitution, or the rights 
of the states or the people thereof, and no provision 
was made to compensate the owners of the slave prop- 
erty. This breach of the constitution has also been ad- 
justed by the states, in amendments to their respective 
constitutions abolishing slavery therein. 

Article XIV. 

Sec. 1 . ' 'All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citi- 
zens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States ; nor shall any state deprive any per- 
son of life, liberty, or property, without due process of 
law ; nor deny to any person within its jurisdiction the 
equal protection of the laws. ' ' 

Sec. 2. "Representatives shall be apportioned among 
the several states according to their respective numbers, 
counting the whole number of persons in each state, ex- 
cluding Indians not taxed. But when the right to vote 
at any election for the choice of electors for president 
and vice-president of the United States, representatives 
in congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to 
any of the male inhabitants of such state, being twenty- 
one years of age, and citizens of the United States, or in 
any way abridge, except for participation in rebellion, or 
other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens 
twenty-one years of age in such state. ' ' 

Sec. 3. "No person shall be a senator or representa- 
tive in congress, or elector of president and vice-pres- 
ident, or hold any office, civil or military, under the 



334 CONSTITUTION OF THE UNITED STATES. 

United States, or under any state, who, having previously 
taken an oath, as a member of congress, or as an officer 
of the United States, or as a member of any state legis- 
lature, or as an executive or judicial officer of any state, 
to support the constitution of the United States, shall 
have engaged in insurrection or rebellion against the 
same, or given aid or comfort to the enemies thereof. 
But congress ma}^ by a vote of two-thirds of each house 
remove such disability." 

Sec. 4. "The validity of the public debt of the United 
States, authorized by law, including debts incurred for 
payment of pensions and bounties for services in sup- 
pressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any state shall assume 
or pay any debt or obligation in aid of insurrection or re- 
bellion against the United States, or any claim for the 
loss or emancipation of any slave ; but all such debts, 
obligations and claims shall be held illegal and void." 

Sec. 5. "The congress shall have power to enforce, 
by appropriate legislation, the provisions of this article." 

This amendment was proposed to the legislatures of 
the several states by the thirty-ninth congress on the 1 6th 
of June, 1866. On the 21st of July, 1868, congress 
adopted and transmitted to the department of state a 
concurrent resolution, declaring that "the legislatures of 
the states of Connecticut, Tennessee, New Jersey, Oregon, 
Vermont, New York, Ohio, Illinois, West Virginia, Kan- 
sas, Maine, Nevada, Missouri, Indiana, Minnesota, New 
Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, 
Florida, North Carolina, Alabama, South Carolina, and 
Louisiana, being three- fourths and more of the several 
states of the union, have ratified the fourteenth article of 
amendment to the constitution of the United States, 
duly proposed by two-thirds of each house of the thirty- 
ninth congress ; therefore, 



AMENDMENTS TO THE CONSTITUTION. 335 

1 ' Resolved, That said fourteenth article is hereby de- 
clared to be a part of the constitution of the United 
States, and it shall be duly promulgated as such by the 
secretary of state. ' ' 

The secretary of state accordingly issued a proclama- 
tion, dated the 28th day of July, 1868, declaring that 
the proposed fourteenth amendment had been ratified, in 
manner hereafter mentioned, by the legislatures of thirty 
of the thirty-six states, viz.: Connecticut, June 30th, 

1866 ; New Hampshire, July 7th, 1866 ; Tennessee, July 
19th, 1866; New Jersey, September nth, 1866 (and the 
legislature of the same state passed a resolution in April, 
1868, to withdraw its consent to it) ; Oregon ratified it 
September 19th, 1866; Vermont, November 9th, 1866; 
Georgia rejected it November 13th, 1866, but ratified it 
July 2 1 st, 1868 ; South Carolina rejected it December 
20th, 1866, but ratified it July 9th, 1868; North Caro- 
lina rejected it December 4th, 1866, but ratified it July 
4th, 1868 ; New York ratified it January 10th, 1867 ; Ohio 
ratified it January nth, 1867 (but the legislature thereof 
passed a resolution in January, 1868, to withdraw its con- 
sent to it) ; Illinois ratified it January 15th, 1867 ; West 
Virginia ratified it January 16th, 1867 ; Kansas, January 
1 8th, 1867 ; Maine, January 19th, 1867 ; Nevada, Janu- 
ary 22d, 1867, Missouri, January 26th, 1867 ; Indiana, 
January 29th, 1867 ; Minnesota, February 1st, 1867 ; 
Rhode Island, February 7th, 1867 ; Wisconsin, February 
13th, 1867; Pennsylvania, February 13th, 1867; Michi- 
gan, February 15th, 1867; Massachusetts, March 20th, 

1867 ; Nebraska, June 15th, 1867 ; Iowa, April 3d, 1868 
Arkansas, April 6th, 1868 ; Florida, June 9th, 1868 
Louisiana, July 9th, 1868 ; Alabama, July 13th, 1S68 
Georgia again ratified the amendment February 2d, 1S70 
Texas rejected it November 1st, 1866, but ratified it Feb- 
ruary 18th, 1870; Virginia rejected it February 19th, 



336 CONSTITUTION OF THE UNITED STATES. 

1867, but ratified it October 8th, 1869. It was rejected 
by Kentucky, January 10th, 1867 ; by Delaware, Febru- 
ary 8th, 1867, an d by Maryland, March 23d, 1867. 

This amendment requires the fifteenth amendment to 
complete it, which more definitely points out the class of 
persons the fourteenth amendment was intended to 
affect, which is as follows : 

Article XV. 

Sec. 1 . " The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any state on account of race, color, or previous con- 
dition of servitude. ' ' 

See. 2. " The congress shall have power to enforce this 
article by appropriate legislation. ' ' 

The fourteenth amendment was not only voted for by 
the native born of African descent before its adoption, 
and before they were made capable of being voters, but 
at a time a large portion of the valid white citizens of 
the seceding states were denied citizenship, and their 
right to vote by an act of congress ; and even by 
that arbitrary method of reconstructing the seceding 
states, it is at least doubtful wdiether a sufficient number 
of the states ratified it to make it a part of the constitu- 
tion, for it required a resolution of the congress, declar- 
ing it had been ratified by three-fourths of the states, 
and an order by that department, to induce the secretary 
of state to promulgate it as a part of the constitution.* 

The fifteenth amendment, however, w T as promulgated 
by the secretary of state without any command from the 
congress. 

As shown in discussing the authority to admit new 
states, every nation must have a people associated to- 

* Revised Statutes of United States. 



AMENDMENTS TO THE CONSTITUTION. 337 

gether as one people, who may be known and recognized 
as but one political body or people, capable of appro- 
priating a designated part of the globe to their exclusive 
use ; for if there is any doubt about the character or the 
identity of the people who lay claim to that designated 
part of the globe, their claim will not be regarded by 
other nations, races, or tribes of people. 

The dual system of governments for the United States 
was ordained and established by white people for them- 
selves alone, and negroes, mulattoes and Indians were 
excluded from the body politic or national family of peo- 
ple, who ordained and established the nation of the 
United States. 

A national family being the foundation upon which 
every nation must rest, for whenever the political asso- 
ciation of the people of a nation — or, as it is expressed 
by the supreme court in the Dred Scott case, national 
family — shall be destroyed, their country, territory, or 
other possessions will necessarily revert to the God of 
nature, and again become free to the occupancy of any 
other tribe, race, or nation of people. 

As shown in discussing authority to admit new states, 
no people can be free who commit to their govern- 
ment authority to change the character of people who 
may have been ordained to constitute this political asso- 
ciation or national family, either by extending to inferior 
tribes within the country authority to participate in the 
management of the national affairs, or by expanding the 
boundary thereof so as to take in an inferior tribe or 
race of people to participate therein. 

And, as shown in the first chapter of this review, the 
only organ for giving expression to the sovereign will of 
the people is through sovereign conventions. 

Therefore, any change in the character of the people 
who compose the political association of this nation, or 



33§ CONSTITUTION OF THE UNITED STATES. 

the national family, requires the assent of the sovereign 
will ; and, as shown in discussing the fifth article of the 
constitution, such changes must be made by a federal 
convention and ratified by conventions in three-fourths 
of the states. Hence the native-born of African descent 
could not have been added to the family of sovereign 
citizens of the United States by any amendment proposed 
by the congress and ratified by the legislature of any 
number of the states, even if ratified by the legislatures 
of all of the states ; but, for the purpose of ascertaining 
the intent and effect of the fourteenth and fifteenth amend- 
ments to the constitution, the manner of proposing them, 
and the way it is claimed they were ratified is waived 
without conceding authority in the congress and state 
legislatures to make such amendments. 

The first clause of the first section of the fourteenth 
article of amendment simply declares as a fact, that ■ 'All 
persons born or naturalized in the United States and sub- 
ject to the jurisdiction thereof are citizens of the United 
States and of the state wherein they reside. ' ' 

As shown by the fifteenth amendment, this was in- 
tended to make the native born of African descent be- 
lieve they were to become citizens thenceforth. But the 
second section of this fourteenth amendment concedes to 
the several states the right not only to deny the truth of 
the declaration in the first clause of the first section, 
but concedes to the states authority and power to dis- 
regard it, for the second section offers the states an in- 
ducement to acknowledge so much to be true as will 
permit the native born of African descent to vote in 
elections for the choice of electors for president, representa- 
tives in congress; the executive and judicial officers of the 
state and members of the legislature thereof, and that their 
right to vote in either of said elections shall not be 
abridged except for participation in rebellion or other 



AMENDMENTS TO THE CONSTITUTION. 339 

crime. It is a settled rule of interpretation that the nam- 
ing of particular rights excludes all others from the grant. 

Remembering that sovereign conventions were ordained 
as the only organs through which the people can express 
their ^sovereign will, and that the states were not required 
by the proposition in this second section to extend the sov- 
ereign right to native born of African descent to vote for 
delegates to sovereign or constitutional conventions, or to 
hold office in the state, shows that the draftsman of this 
fourteenth amendment did not intend to make the African 
inhabitants sovereign citizens, for, as sovereign citizens, 
no laws could be made prohibiting them from intermarry- 
ing with the white people, or from attending the same 
public schools. And the danger of daughters of the white 
people being entrapped into marriage with the black bucks, 
while attending school together, would have defeated its 
ratification by the states ; which probably presented itself 
to the draftsman of the amendment. 

But, whatever may have influenced the draftsman, or 
the congress that proposed it, or the states that were 
counted as ratifying it, this amendment, by itself, and 
with the aid of the fifteenth, fails to make the native 
born of African descent sovereign citizens of the states 
or of the United States ; and the congress itself recog- 
nizes this fact. 

For, being authorized to enforce said amendments by 
legislation, the congress, in what was known as the civil 
rights bill, authorized colored inhabitants to carry their 
suits to the United States courts, whether they were 
plaintiffs or defendants, on a plea that they were denied 
justice in the state courts on account of race, color, etc. 

This act of congress appears to be based on the idea 
that native born of African descent became citizens of 
the United States by said amendment, and by virtue 
of being citizens of the United States they become citi- 



340 CONSTITUTION OF THE UNITED STATES. 

zens of the state wherein they inhabit ; there is nothing 
in this act requiring equal protection under the laws of 
the state wherein they reside, but the states are required 
to extend to that class of persons equal protection under 
the laws, and, as they are authorized to take their cases 
into federal courts, the laws referred to can not apply to 
state laws, of which the courts of the United States have 
no jurisdiction. Therefore that act attempts to vest a 
class of persons with privileges that may not be enjoyed 
by full citizens of some of the states wherein they reside ; 
and in many other ways the congress treated them as 
being peculiarly under the protection of the United States, 
and characterized them as citizens of the United States 
and, therefore, citizens of the state wherein they reside, 
though the United States being merely a name to designate 
the states united, and without power to protect or govern 
any people except as the agent or trustee of the states, 
there can not be any citizens thereof, except the citizens 
of the several states in the union. 

If the United States could have citizens independent 
of those of the several states, the United States could 
not in good faith represent the states united ; but to the 
extent of its own citizens it must have an existence in- 
dependent of the states, and to that extent its interest 
would conflict with that of the states ; and to that extent 
the United States would become a rival of the states. 

The first section provides that, ' ' no state shall make 
or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States ; nor shall 
any state deprive any person of life, liberty or property, 
without due process of law ; nor deny to any person 
within its jurisdiction the equal protection of the laws ;" 
which applies only to citizens of the United States while 
under the jurisdiction of the state. Furthermore, the 



AMENDMENTS TO THE CONSTITUTION. 34 1 

first section attempts to transfer all citizenship from the 
states to the United States. 

The fifth section provides that, "the congress shall 
have power to enforce, by appropriate legislation, the 
provisions of this article." 

If these provisions had been upheld by the judiciary, 
they would effectually have transferred the whole police 
jurisdiction of the states to the congress of the United 
States, and have converted the states into mere provinces, 
and the United States into an unlimited empire, but, 
fortunately for the people of the United States, at the 
time these amendments first came before the supreme 
court for interpretation, there were able and patriotic 
judges on the supreme court bench who eliminated the 
revolutionary features by interpretation.* 

The justice who wrote the opinion of the court, in the 
course of his argument, intimated that the object of 
these amendments might have been to get rid of the 
effects of the decision of the supreme court in the 
Dred Scott case, but that question was not involved 
in those cases, and it was not duly considered by the 
court, and should be deemed obiter dictum, and no au- 
thority ; and no regard has been shown it by the judiciary 
or any department of the United States. 

Free societies of people may unite themselves together 
by voluntary engagement or compact, and each society 
retain its freedom and sovereignty as a perfect state, 
provided they enter into that union on perfectly equal 
terms. 

And they may institute a common agent to represent 
the union without impairing the freedom or sovereignty 
of these societies within the union, provided equality be 
preserved in the compact of the union, and provided fur- 



* Slaughter's House Cases, 16 Wall. 36. 



342 CONSTITUTION OF THE UNITED STATES. 

ther, the respective societies consist of one race of people, 
or at least of kindred races of people. For, if some of 
the members or societies of such a union reject any race 
or tribe of people from their societies or political organiza- 
tions, and other members permit those races or tribes into 
their society or political organizations, the several mem- 
bers of such a union could not retain equal freedom and 
sovereignty therein. 

If the native born of African descent were made sover- 
eign citizens by these amendments to the constitution, 
they must have been made citizens of the states wherein 
they reside, and therefore citizens of the United States, 
and they not only have the right to travel in the same 
railroad coaches, but to send their children to the same 
public schools the children of white people attend, for 
the black children may learn much from associating with 
the white children ; and they have the right to patronize 
the same hotels, churches, theaters and to intermarry 
with the whites, and they can not be denied either of 
these, or any other equal right, by either state or federal 
laws. If they are sovereign citizens, it needs neither ar- 
gument nor the citation of authorities to show that they 
can not be discriminated against in any way whatever, 
for sovereignty is supreme and can not be limited other- 
wise than by voluntary agreement, which may be broken 
at will by the sovereign, and no act of the law-making 
power can become a law that allows greater privileges to 
one sovereign than to another. 

That the children of that race of people are excluded 
from the schools provided by the public for white chil- 
dren, and are prohibited from intermarrying with the 
whites, or occupying the same seats in theaters, or 
riding in the same railroad coaches with the white people, 
and in many other ways discriminated against by the 
laws of the states, which are recognized as valid by every 



AMENDMENTS TO THE CONSTITUTION. 343 

department of the United States, shows that the African 
inhabitants are not sovereign citizens of the states or of 
the United States • for, if they were sovereign citizens, 
every discriminating act of the legislature of any state 
would be unconstitutional and void. 

But they are inhabitants of the United States and 
of the state wherein they reside, and as mere inhab- 
itants they are entitled to protection under the laws 
of the United States and of the state wherein they 
reside. As the native born of African descent owe no 
allegiance to any other nation, prince or potentate, 
and have always resided in the United States, it is 
difficult to define the exact relation they bear to the 
United States and the state wherein they reside. They 
are surely entitled to the protection of both, and may be 
said to be wards of both. However, they may be wards 
of the United States without being wards of any state, 
as in case of their going to a territory of the United 
States, they not being full citizens of the state they leave 
to go to such territory, by leaving, all obligations be- 
tween them and the state they migrate from would be 
severed ; in that case, the African inhabitants of the ter- 
ritory would still remain wards of the United States. 
Citizens of the states who migrate to the territories of 
the United States remain citizens of the states they mi- 
grate from until the territory shall be formed into a 
state ; for the territories belonging to all of the states as 
equal owners, though held in trust in the name of the 
United States. No one can become a citizen of any of the 
territories of the United States, however long they may 
reside therein, as citizenship must always be on land and 
can not float in the air or be held in abeyance ; hence, 
it remains where it last took root. 

However, persons leaving a foreign nation to settle in 
a territory, who are entitled to be naturalized, must ac- 



344 CONSTITUTION OF THE UNITED STATES. 

quire some right under the laws of the United States, 
and must be entitled to protection of the authority hav- 
ing control of the territories while residing therein, 
which makes them a species of wards to the congress. 

The second clause of the first section having been 
eliminated by decision of the supreme court in the 
Slaughter- House cases, supra, and the declaration in the 
first clause of the constitution being unenforcible, there 
is but little remaining of this amendment. 

The second section requires the negroes to be enumer- 
ated in the same way the whites are counted for repre- 
sentation of the states in the congress and for the se- 
lection of presidential electors, if the states will allow 
them to vote in certain specified elections. 

The third section disfranchises those who had taken 
an oath to support the constitution of the United States 
and afterward engaged in the rebellion, but the congress 
was authorized to relieve them of that disability by 
special act or acts, and all who were engaged in the 
rebellion have either died or had their disabilities re- 
moved by special acts of congress, so that this section is 
now obsolete. 

The fourth section thereof gives the war debt a consti- 
tutional sanction, and provides that neither the United 
States nor any state shall pay for any slave that had been 
freed by the thirteenth amendment to the constitution. 

As the states have manumitted the slaves by state 
laws and no one is claiming pay for them, and there 
being no disposition to repudiate the war debt, this sec- 
tion ceases to perform any functions. However, these 
two sections present curious features of the human mind, 
which may prove a valuable lesson to students of states- 
manship. 

The members of congress who proposed this amend- 
ment, while preparing and proposing it, were under oath 



AMENDMENTS TO THE CONSTITUTION. 345 

to support the constitution, and as such officers they 
were bound to protect all citizens alike in the enjoyment 
of their private property. Property in slaves was guar- 
anteed by the constitution, so that in preparing and pro- 
posing this amendment they were engaged in open rebel- 
lion to that instrument while under oath to support it. 
Therefore it is curious that they could have been im- 
pressed with the seriousness of the crime of those who 
had taken an oath to support the constitution, after being 
absolved from it, by going out of office before engaging 
in rebellion against that instrument, remain so blind to 
their own rebellion against the plain letter thereof. 

But the states having abolished slavery in their re- 
spective borders, and extended to their former slaves the 
right to vote, and to acquire, own and dispose of prop- 
erty in the same way the sovereign white citizens do, 
these two amendments no longer perform any functions 
except to threaten the tranquillity of society, by leading 
the blacks to believe they have greater rights than they 
really have, which emboldens them to attempt to grasp 
other privileges not due them. 

The right to vote may be made of great value to the 
manumitted slaves. If they vote as their individual 
opinions lead them to believe to be their best interest, 
each exercising his own personal judgment, and if they 
demean themselves decently and respectfully toward the 
white as well as toward each other, they will have the 
respect and sympathy of all good citizens to aid them in 
the strife of life, and their votes will be solicited in the 
same way the votes of the whites are sought by candi- 
dates and parties. 

But while they continue to vote at the dictation of any 
one party, like a herd of alarmed buffaloes " running all 
together," without exercising their own personal reason 
or friendships, how can any individual or party respect 



346 CONSTITUTION OF THE UNITED STATES. 

them ? In so doing, but for the indulgent sympathy of 
the whites, they might be harshly treated, and more 
strictly bound and limited in the enjoyment of privileges 
under the state laws. 

Furthermore, the states united, must have a common 
agent or representative, else they can not be united. To 
destroy that common agent would disintegrate the union 
of the states. That common agent must be common to 
all of the states as equals, and can not have any interest 
independent of the union of states, without coming in 
conflict with the union ; and whenever it undertakes to 
represent any people, except the people of the several 
states, it is bound to place itself in opposition to the in- 
terest of the states of the union, and to that extent its 
ability to serve the several states, as fully as its duty 
requires, must necessarily be destroyed, and the purposes 
of the union must be thwarted, unless a new common 
agent could be procured. 

The supreme court, however, has decided in more than 
one case, that there may be citizens of the United States 
and citizens of the states, consisting of different persons, 
and that a person may be a citizen of one without being 
a citizen of the other, but how can that be as long as the 
United States is simply the common agent of the states 
united? It is true the territories are under the ex- 
clusive control of the congress, therefore they can not be 
controlled by any one of the states, and persons who migrate 
to a territory from a foreign nation, as soon as they take 
out their naturalization papers, will become wards of the 
United States, as they can not become citizens of a terri- 
tory held in trust by the congress for the use of all of 
the states alike, as equal owners of the beneficial interest 
thereof ; but the congress in acting as the guardian of 
that class of wards to the nation, will be acting as the 
agent of all of the states, and in harmony with all of the 



AMENDMENTS TO THE CONSTITUTION, 347 

states, and simply carrying into effect the obligation of 
the states united as to that class of persons, or inhabit- 
ants of the territories. 

The Indians occupying territory within the United 
States, subject to the jurisdiction thereof, are in like 
manner wards of the United States. 

A state may authorize emigrants from foreign nations 
to vote therein before they have been in this country 
long enough to be naturalized according to the naturali- 
zation acts of congress ; but the right to vote does not 
make them citizens, and they would not be entitled to 
the privileges and immunities of citizens thereof in any 
other state. 

There has been no case, that I know of, before the su- 
preme court, involving this question. 

However, it was incidentally referred to in the Dred 
Scott case, hereinbefore cited, and the court held that the 
right to vote might be extended to persons who were not 
citizens, and that the mere right did not make them citi- 
zens, which expression of the court is fully sustained by 
text-writers on the subject. 

Therefore, by extending to the colored male inhabit- 
ants the right to vote, a state does not make them citi- 
zens, particularly as the states extending that right to 
the colored race prescribed limitations and restrictions 
on them. And the states may take away from the native 
born African inhabitants the right to vote at any time, 
though that is not likely to be done as long as the) T be- 
have themselves with only tolerable decency and patri- 
otism. 

Therefore, the colored race of people, although born 
in the United States, can not constitute any part of the 
national family of sovereign citizens. 



INDEX. 



Accusation of self, no one bound to 318 

Accounts public, to be published 190 

Admit new states , 271 

Adjournment of congress 109 to 113 

Of each house of , 109 to 113 

Admiralty (see Judiciary) 239 

Aliens, who are 236 

Suits by and against 236 

Ambassadors, appointment of „ 219 

Receiving of 220 

Dismission of 228 

Amendment of constitution 297 

Amend article of confederation 100 

American great principles 23 

Appellate jurisdiction. (See Judiciary). 

Appointing power of president and senate 68 

Joint powers of president and senate 68, 69 

Of president alone 69 

Under acts of congress 125 

Of congress and heads of departments 219 

Apportionment of representatives no, 332 

Of direct taxes no 

Appropriation of money „ 131, 189 

Arms, right to bear 316 

Army and navy, congress to regulate 183 

Articles exported from states not to be taxed 189 

Article five constitution shows a compact 264 

Arrest of members of congress 127 

Amendments to constitution — 

Article one 314 

. Two 317 

Three 317 

Four 317, 318 

Five 31S 

Six 318 

(349) 



350 INDEX. 

Seven 321 

Bight 323 

Nine. 324 

Ten 324, 325 

Eleven ., 325 

Twelve 208 to 215, 329 

Thirteen 329 

Fourteen 332 

Fifteen 335 

Three and six in conflict 306 

Arts and sciences 180 

Attainder, by United States 189 

By states 192 

Effect of in treason 137 

Bail, excessive prohibited • 323 

Ballot, voting by 208, 209, 255 

Banks, of United States 86 

States can not tax them 86 

Bedford's speech in convention 47 

Bills of credit, states not to emit 192 

Bills of attainder forbidden 489 

Boundary, of United States as conquered from England . . 285 to 292 

Of first and second companies under charter of 1606 1 

First company changed 1 

Second company changed 3 

Charter to Earl of Clarendon 279 

Resolution of Maryland 281 

Remonstrance of Virginia thereto 282 

Cession by Virginia of surplus to United States 284 

Not reduced, by treaty either with England or Spain 285 

Decisions of supreme court relating thereto, 12th Wheaton 

523-530 283 

Bounties and pensions , 333 

Bribery, all officers removable for, by impeachment 62, 220 

Canals and roads, power of congress over 159 to 173 

Capitation tax, how to be laid 189 

Captures, regulated by congress 183 

Census, when to be taken no 

Cessions, for seat of government 184 

For forts, arsenals, etc 184 

Charter governments (see Colonies) i, 14 to 30 



INDKX. 351 

Citizens of United States, who are 100, 271 to 274 

Commerce, power of congress over 159 

Among does not mean between states 162 to 167 

Common law in colonies 4. 

Common defense 82, 131 

Confederation, only amended by constitution of 1787 80 

Congress, organization of 109 

Divided into two houses 109 

Each to judge of election of its members 125 

To make its own rules for proceeding 125 

May compel attendance of its members 125 

May punish them for bad conduct 125, 126 

Or expel them 125, 126 

Members of not to answer elsewhere for language in debate . 61 

Keep a journal and publish proceedings 126 

Neither house to adjourn more than three days without the 

other 126 

By concurrence of both, may adjourn at will 126 

May lay and collect taxes 131 to 142 

Regulate commerce 162 

Borrow money 142 to 159 

Establish rules of naturalization 174 

Post-offices and post-roads 180 

Promote science and useful arts 180 

Constitute tribunals inferior to the superior court 181 

Define and punish piracies 182 

Declare war, and provide for its prosecution 183 

Exclusive power to legislate for seat of government 184 

(This power should be taken in a qualified sense). . .185 to 187 

Make all laws necessary to carry out the powers granted 187 

May suspend writ of habeas corpus in certain cases 189 

May declare punishment of treason 137 

Draw money from the treasury upon appropriations 190 

Shall not draw money from treasury except on appropria- 
tions 190 

Nor suspend writ of habeas corpus, except, etc 190 

Pass bills of attainder 190 

Pass bills ex post facto 190 

Grant letters of nobility 190 

Conscience, rights of 314 



35 2 index. 

Constitution — 

Completed and agreed to 53 

Reported to congress with resolutions, 54 

Approved and referred to states by congress 55 

Approved by state legislatures and referred to conventions 

of states, 55 

Ratified by state conventions 55 

Delaware 55 

Pennsylvania 55 

New Jersey 55 

Connecticut 55 

Massachusetts 55 

Georgia. 55 

Maryland 55 

South Carolina ". 55 

New Hampshire 55 

Virginia 55 

New York 55 

North Carolina, afterward 

Constitution with all amendments 57 to 80 

Retained union of, state organizations 80, 81 

Also made union of, the people of the states 80, 81 

Certain provisions thereof, taken from England 5 to 15 

Ordained, by the people of the states 80, 81, 82; from 98 to 102 

Preamble, meaning of 95 to 106 

Different interpretations of 83 to 95 

Messrs. Pomroy and J. C. Hamilton .92 to 93 

Judge Tucker 94 

Supreme court's views 82 

Departments only, ordained by it 95, 96 

Union under it, is a compact 296 to 300 

As compact, no department ordained by it could be party to it. 310 
Can not be amended so as to deprive any state of equal suf- 
frage in the senate 114 to 117 

It must bind all, except the people when in convention 266 

It is the only authority for every power 264 

Convention to amend confederation — 

Confederation was union of state governments only. .80, 81, 114 

Articles of, drafted by congress 25 

Ratified by states 26 

Cause for amending same 33, 34 

Convention met „ 34 to 36 



indkx. 353 

Randolph resolutions 36 to 40 

Which were revised and debated 40 to 44 

Patterson's resolutions 45 

Both sets referred to committee of whole 46 

Committee of whole sustained Randolph resolutions as 

amended 47 

They were both debated 47 

Hon. Mr. Bedford's speech 47 

Effect of his speech 50 

Both sets of resolutions were referred to committee 50 

Report of compromise of grand committee 51 

Compromise of said committee accepted by convention. ... 52 

Controversy as to how senators should vote 52 

Debts of confederacy assumed 304 

Debts of United States not taxable by states 86 

Declaration of Independence 24 

Direct tax 138, 189 

Discussion on right of president to reject ambassadors, 222 to 235 
Disqualification to hold office — 

Of president =. 206, 333 

Congress , no, 333 

Electors 205, 333 

District of Columbia, legislation in must be taken with qual- 
ification 184 to 187 

Duties, power of congress to lay 131 to 142 

Must be uniform 131 to 142 

States prohibited from 192, 193 

Elections, of President 205 to 209 

Of representatives in congress no 

Senators 112 

Vice-president 208, 209 

Embargo, power to lay 172 

Excises, what are 131 to 133 

Exclusive, what powers of congress are 131, 142, 159 

Executive Department 205 

Organization of 205 

Duration of office of 205 

Re-eligibility (see President) 205 to 209 

Exports, no duties can be laid on 189 

l£x fost facto laws, to congress prohibited 189 

And to the states 192 



354 INDEX. 

Felonies on the high seas 182 

Fines and forfeitures may be pardoned by president 219 

Freedom of the press 314 

Of speech 314 

Of religion 314 

Fugitive criminals 269 

General welfare, power to tax for 131 

Georgia, original constitution for 29 

Government of United States — 

Corporate agent of the people 95 

Federal republic in form 80 to 95 

Republican form, guaranteed the states 72 

Grand jury, in crimes 237 

Habeas corpus, writ of not to be suspended unless 189 

Health laws belong to the states 192, 324 

High seas, what is , 182 

Crimes on 182 

House of representatives (see CONGRESS) 109 

Impairing contracts, states prohibited from 192 to 194 

Impeachment, power of in house of representatives in 

But to be tried before the senate 113 

When president or vice-president is tried 113 

Proceedings on trial 113 

Who are liable to 220 

For what offenses 220 

Imports, no state can tax 192 

Impost (see Duties) 131, 192 

Independence, Declaration of 24 

Indians, commerce with 159 

Indictment, when necessary 318 

Inferior officers, appointment of 219 

Information in criminal cases 318 

Injunctions by United States courts 254 to 264 

By state courts , 254 to 264 

Insolvent laws 178 

Internal improvements (see Appropriations) 131 

Inventions, patents for 180 

Jeopardy of life or limb 318 

Journals of each house 126 

Judges, appointment of 219 

Terms of 236 

Duties of, judicial only 236 



index. 355 

Compensation of 236 

Impeachment of 220 

Judgments of other states 268 

Judiciary department — 

Organization of 236 

Appointment of judges 219 

Tenure of office 236 

Establishment of courts 236 

Jurisdiction of courts 236 

Original jurisdiction 236 

Appellate jurisdiction 236 

Parties to suits in , 236 

when state a party 236 

Suits by and against ambassadors 236 

Admiralty suits 236 

Suits by United States 236 

between citizens of different states 236 

under grants by different states 236 

by or against foreigners 236 

Appellate jurisdiction over state courts 236 

regulation of by congress 236 

Jury, trials by 237-318 

In criminal cases 318 

In civil cases 321 

Lands, public, power of congress over 271 

Laws of United States, supremacy of 303 

Law of the land 303 

Legislation, when exclusive in congress 64 

Legislation exclusive in congress in ceded places 64 

On the high seas 182 

Legislature (see Congress) 109 

Letters of marque and reprisal — 

Power of congress to grant 183 

States prohibited from granting 192 

Liberty of speech 314 

Of the press 314 

Of conscience ■. 314 

Not accountable elsewhere for language in debate in congress. 61 

Louisiana province 279-284 

Madison's letter to Sparks 53 

Manufacturers, can congress protect 132-137 

Martin's, Luther, report to Maryland , 52 



35 6 INDEX. 

Maryland, when first constitution was made , 30 

Measures and weights, congress to regulate 142 

Militia, power of congress over 183 

To discipline and govern same 183 

When called forth, United States to command them 183 

Ministers, public, appointment of 219 

Receiving of 220 

Right to sue 236 

Money, coinage of 142 

Power to borrow 142 

Revenue bills 189 

Morris, Gouverneur, letter to Pickering 241 

Naturalization, power of congress as to 174 

Navigation, regulation of by congress 168 

Navy and army, power of congress to establish and regulate. . 183 

Negative of president on acts of congress 129 

Neutrality proclamation in 1793 222 

New England, origin of 3 

New Hampshire, when first constitution was made 27 

New Jersey, when first constitution was made 28 

New York, when first constitution made 30 

Nobility, prohibition of titles of 190-192 

North Carolina, when first constitution was made 27 

Oath of office, by president 207 

By senators 60, 303 

By representatives 303 

All officers to be bound by oath to support constitution 303 

Obligation of contract, what it is 198 

Office, tenure of judges 236 

Of president 205 

Power of president to appoint 219 

Disqualification to hold that of president 206 

Of vice-president 209 

Offices, inferior, in sense of constitution 181 

Original jurisdiction (see Judiciary) 236 

Paper money, prohibited 192-142 

Pardons and reprieves 219 

Patents for inventions 180 

Patterson resolutions in convention 45 

People of the states ordained the constitution 80-95 

Of the states, constitute the nation 95 

Piracy, power to define, etc 182 



index. 357 

Plymouth colony, origin of, etc 3 

Post-offices and post-roads 180 

Powers of congress (see Congress) 109 

Powers reserved to the people 324 

Preamble to constitution 82 

Press, liberty of 314 

Presidents, negation on acts of congress 129 

Mode of choice of 255 

Re-eligibility of to office 206 

Duration of office of 205 

No election of, by electors 205 

Vacancy of office of 206 to 216 

Powers of 219 

Duties of 206 to 219 

May require opinion of heads of departments. 219 

May call forth militia 183 

Regulate and discipline same 183 

With approval of senate may make treaties (see Treaties). 219 

Resignation of 67, 206 

Pardons and reprieves by 219 

Qualifications of 206 

Compensation of 206 

Death of 207 

Commander of army and navy 219 

May convene and adjourn congress 219 

Receive ambassadors, etc 220 

Impeachment of 113 

Judgment of impeachment of 113 

Veto power of 129 

President of the senate 112 

Presents from foreign governments, not allowed 190 

Process of law, what it is 318 to 323 

Proclamation by president 000 

Prohibition on United States 189, 318 to 329 

On states 192 

Property taken for public use 318 

Property of United States, congress has control of 271 

Proprietary or charter governments of colonies 1, 5, 15 

Protective duties (see Taxes) 131 

Provincial governments, what 1, 5, 15 

Public lands, under control of congress 271 

Purchase of foreign Territory by United States 271 to 291 



35 8 INDEX. 

Qualification of officers — 

Of members of house of representatives no 

Of senate 112 

Of president 206 

Of vice-president 209 

Of judges, (none prescribed). 

Quartering troops 316 

Quorum of each house 125 

Ratification of constitution, how made 55 to 56 

Records and laws of states, how proven, etc 268 

Religious tests prohibited 314, 303 

Representatives — 

In colony of Virginia 2 to 4 

In congress 100 to 104. 

How chosen 100 to 104 

Tenure of office no 

Qualifications of no 

Apportionment of no 

Speaker of house in 

Impeachment of , in 

Disqualification of , 332 

Reprieves and pardons 219 

Power of president to grant 219 

Reprisals (see LETTERS of Marque) 183 

Reserved rights and power of the people 295, 324 

Retrospective laws 189 

Revenue, bills to raise 189, 131 

Rights reserved to states and people 324 

Roads and canals, power of congress 159 to 173 

Seat of government 184 

Sedition and alien acts, not constitutional 148 

Senate, organization of 112 

How chosen 112 t o 120 

Number of senators 112 

Term of senators 112 

Vacancies in, how supplied 122 

Qualifications of 112 

Vice-president, president of 112 

Authorized to try impeachments 113 

Disqualification of members 321 

Slavery abolished 319 

Soldiers, quartering of 316 



index. 359 

South Carolina, first constitution 27 to 28 

Speaker of house of representatives in 

Speech, liberty of 314 

Speech of Mr. Bedford in the convention 47 

States, admission of new 271 

Condition upon which they may be admitted 271 

First and second condition 271 

Third condition 271 to 274 

Fourth condition 274 to 292 

Prohibitions of— 

No state to make treaties, form alliances or compacts 192 

Nor grant letters of marque 192 

coin money 192 

emit bills of credit 292 

Nor make any thing but gold and silver coin a tender 192 

Nor make laws impairing the obligations of contract 192 

Nor pass bills of attainder or of nobility 192 

Nor without the consent of Congress 192 

Keep an army or navy 193 

Lay any duty or imposts 192 

Shall not tax obligations of the United States 86 

Nor tax imports 192 

Nor lay tonnage 193 

Nor engage in war, unless, etc 193 

Suits by and against states (see Judiciary) 240 

At common law 321, 322 

Supremacy of constitution, etc 303 

Taxes, power of congress to lay 131 

Must be to pay debts or provide for common defense or gen- 
eral welfare 131 

Direct what 138 

Power not exclusive 131 

Restriction of power in 136-138 

Tender laws, states limited in passing 192 

Territories of United States, congress has control of 171 

Tests, religious, prohibited 314 

Testimony, criminals not bound to give against themselves 318 

Tonnage duties by the United States 193 

Treason, definition of 237 

Evidence of 237 

Effect of conviction of 237 

Punishment of 237 



360 INDEX. 

Treaties, states prohibited from making 192 

Power of president and senate to make 219 

Trial of crimes, in what place 70, 318 

Must be by jury 70, 318 

Certain civil cases must be by jury 321 

Troops, quartering of prohibited unless, etc 216 

United States (see Constitution of) 57~8o 

Supremacy of laws of 303 

Right to sue 236 

Right to contract 131, 142, 219 

No right to purchase foreign territory except for common 

defense or naval stations 271-292 

May acquire domestic territory for certain uses 184 

Unity of the executive , 205 

Vacancies in office (see President) 205 

Senators in congress 120 

Representatives in congress 111 

President may appoint to fill certain vacancies during recess 

of congress 219 

In office of president 206-216 

Vice-president, how chosen 208 

Shall be president of senate 112 

Vacancy in office of , 113 

Impeachment of 220 

Duration of term of 205 

Resignation of 206 

Virginia, origin and settlement of 1 

Warrants, general, prohibition of 317 

War, congress sole power to declare 183 

Weights and measures, congress to regulate 142 

Witnesses, criminals not required to be against themselves 318 

Criminals entitled to compulsory process for in their behalf. 319 
Wreck at sea, congress may regulate 182 



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